Reforming the Good Moral Character Requirement for U.S. Citizenship

Reforming the Good Moral Character Requirement 

for U.S. Citizenship † 

KEVIN LAPP * 

This Article explores the impact of the convergence of criminal law and 

immigration law on the most valued government benefit in the land: citizenship. 

Specifically, it examines how criminal history influences the opportunity to 

naturalize through the good moral character requirement for U.S. citizenship. 

Since 1790, naturalization applicants have been required to prove their good 

moral character. Enacted to ensure that applicants were fit for membership and 

would not be disruptive or destructive to the community, the character requirement 

also allowed for the reformation and eventual naturalization of those guilty of past 

misconduct. This Article shows that recent changes in immigration law and the 

handling of naturalization petitions by the United States Citizenship and 

Immigration Services (USCIS) have turned the good moral character requirement 

into a powerful exclusionary device. Since 1990, Congress has added hundreds of 

permanent, irrebuttable statutory bars to a good moral character finding based on 

criminal conduct. Where no bar applies, examiners may still deny an applicant on 

character grounds in their discretion, which they are doing with management 

encouragement and increasing frequency. The effect is the creation of bars to 

citizenship not found in the statute, subverting the statutory and regulatory scheme 

governing naturalization. 

The expressively punitive nature of the current good moral character provision 

and USCIS’s misguided priorities in handling naturalization applications force 

legal resident immigrants with criminal histories to permanently live in the 

shadows of full membership, never able to possess the full rights, privileges, and 

respect that citizenship can bring. The Article argues that a robust, inclusive notion 

of citizenship remains necessary despite its apparent diminishment in the twentyfirst 

century world. Informed by insights from sociological research on community 

cohesion and criminological findings on desistance, it shows why there must be 

space for those residents with a criminal past to demonstrate their current fitness 

for membership. It urges statutory and agency reforms that would realign the good 

moral character requirement with its historical purpose and understanding and 

promote a naturalization scheme that, at no cost to public safety, promotes social 

cohesion and advances democracy and equality by making redemptive citizenship 

possible. 

INTRODUCTION.................................................................................................... 1572 

I. U.S. IMMIGRATION AND NATURALIZATION LAW ............................................. 1575 

A. AMERICAN CITIZENSHIP ........................................................................ 1578 

† Copyright © 2012 Kevin Lapp. 

* New York University School of Law. I would like to especially thank Nancy 

Morawetz, Michael Wishnie, Bill Nelson, Peter Schuck, Cristina Rodriguez, Alina Das, the 

members of the N.Y.U. Lawyering Scholarship Colloquium, and participants at the 2011 

Northeast Regional Scholarship and Teaching Development Workshop at Albany Law 

School for their insightful and helpful comments on the ideas in this Article.

1572 INDIANA LAW JOURNAL [Vol. 87:1571 

B. GOOD MORAL CHARACTER REQUIREMENT ........................................... 1584 

II. THE SHADOWS OF MEMBERSHIP ..................................................................... 1593 

A. HALF WELCOME ................................................................................... 1593 

B. DENIED ON CHARACTER GROUNDS ....................................................... 1600 

C. SCARED CITIZENSHIP-LESS ................................................................... 1613 

III. THE FAILURES OF THE CURRENT REGIME...................................................... 1614 

A. SOCIAL INTEGRATION AND COHESION .................................................. 1614 

B. POLITICAL INTEGRATION AND DEMOCRACY ......................................... 1619 

C. REDEMPTION ......................................................................................... 1624 

IV. REFORMS ...................................................................................................... 1629 

A. REFORM THE INA: ELIMINATE OR RESTRICT THE GOOD MORAL 

CHARACTER REQUIREMENT....................................................................... 1630 

B. REFORMS AT USCIS ............................................................................. 1635 

CONCLUSION ....................................................................................................... 1637 

INTRODUCTION 

The Immigration and Nationality Act (INA) requires that all naturalization 

applicants demonstrate their good moral character. 1 This requirement has existed 

since Congress passed the first naturalization statute in 1790. 2 It aims to ensure the 

applicant’s fitness for full membership in the polity and that she will not be 

disruptive or dangerous to the community. 3 

For over 150 years, Congress offered no guidance whatsoever on what 

constituted good moral character in the naturalization context. 4 In the absence of a 

statutory definition, courts developed a flexible, forward-looking standard for 

evaluating good moral character that did not mean to punish for past conduct 5 but 

instead contemplated prior transgressions and recognized the potential for reform. 6 

The immigration service adopted this view, stating in a mid-twentieth-century 

training manual that Congress “undoubtedly intended to provide for the 

reformation of those who have been guilty of past misdeeds.” 7 

Recent changes in immigration law and the handling of naturalization petitions 

by the U.S. Citizenship and Immigration Services (USCIS) have turned the good 

1. 8 U.S.C. §§ 1427(a) (2006); 8 C.F.R. §§ 316.2(a)(7), 316.10, 329.2(d) (2010). 

2. Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103. 

3. See 1 ANNALS OF CONG. 1114 (1790) (Joseph Gales ed., 1834) (statement of Rep. 

Jackson) (“I think, before a man is admitted to enjoy the high and inestimable privileges of a 

citizen of America, that something more than a mere residence among us is necessary. I 

think he ought to pass some time in a state of probation, and, at the end of the term, be able 

to bring testimonials of a proper and decent behavior . . . .”). 

4. See infra Part I.B. 

5. See, e.g., Posusta v. United States, 285 F.2d 533, 535–36 (2d Cir. 1961) (remarking 

that the standard is not “penal” and that “a person may have a ‘good moral character’ though 

he has been delinquent upon occasion in the past”). 


7. IMMIGRATION AND NATIONALITY SERVICE, NATIONALITY MANUAL: FOR THE USE OF 

OFFICERS AND EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE § 773 

(1945).

2012] GOOD MORAL CHARACTER REQUIREMENT 1573 

moral character requirement into a powerful exclusionary device. Since 1990, 

Congress has added hundreds of permanent, irrebuttable statutory bars to a good 

moral character finding triggered by criminal conduct. 8 Where no statutory bar 

applies, naturalization examiners may still deny an applicant on character grounds 

in their discretion. 9 The effect of these statutory changes and agency practices is the 

creation of bars to citizenship not found in the statute, subverting the statutory and 

regulatory scheme governing naturalization. 10 

While many scholars have critically explored U.S. naturalization policies, few 

have discussed the good moral character requirement for citizenship at any length. 

Several articles predating the passage of the INA in 1952 11 and four articles from 

the early 1970s 12 discussed the various standards that courts used to determine 

good moral character and the lack of uniformity in the results reached. But the law 

and agency practices have changed significantly since then. Among recent 

scholarship, only Professor Peter Spiro’s 1999 article, Questioning Barriers to 

Naturalization, spends any time explicitly exploring the good moral character 

requirement, and even there the discussion totals only a few paragraphs. 13 


9. See infra Part II.B. Until 1990, exclusive jurisdiction to grant naturalization rested 

with courts. The Immigration Act of 1990 introduced administrative naturalization, vesting 

the Attorney General with exclusive jurisdiction to grant naturalization without permission 

from the district court. Immigration Act of 1990, Pub. L. No. 101-649, § 407(d)(14)(B), 104 

Stat. 4978, 5044. 

10. See infra Part II. 

11. See generally Winfield E. Ohlson, Moral Character and the Naturalization Act, 13 

B.U. L. REV. 636 (1933); Albert S. Persichetti, Good Moral Character as a Requirement for 

Naturalization, 22 TEMP. L.Q. 182 (1948); Elmer Plischke, “Good Moral Character” in the 

Naturalization Law of the United States, 23 MARQ. L. REV. 117 (1939); Note, Good Moral 

Character in Naturalization Proceedings, 48 COLUM. L. REV. 622 (1948). 

12. See generally Lisa H. Newton, On Coherence in the Law: A Study of the “Good 

Moral Character” Requirement in the Naturalization Statute, 46 TEMP. L.Q. 40 (1972) 

(asserting that the law cannot be applied coherently or meaningfully and suggesting its 

elimination); Steven L. Strange, Private Consensual Sexual Conduct and the “Good Moral 

Character” Requirement of the Immigration and Nationality Act, 14 COLUM. J. TRANSNAT’L 

L. 357 (1975) (arguing against including private sexual conduct within the moral character 

inquiry for citizenship purposes); Note, The Evaluation of Good Moral Character in 

Naturalization Proceedings, 38 ALB. L. REV. 895 (1974) (urging a single, national standards 

test); Note, Naturalization and the Adjudication of Good Moral Character: An Exercise in 

Judicial Uncertainty, 47 N.Y.U. L. REV. 545 (1972) (arguing for the use of objective factors 

and a focus on the applicant’s recent conduct). 

13. Peter J. Spiro, Questioning Barriers to Naturalization, 13 GEO. IMMIGR. L.J. 479, 

508–16 (1999) (positing that the good moral character requirement is surplusage when 

considered alongside deportation provisions). Recent works that analyze various 

requirements for naturalization discuss the good moral character requirement cursorily if at 

all. See PETER J. SPIRO, BEYOND CITIZENSHIP: AMERICAN IDENTITY AFTER GLOBALIZATION 

33–59 (2008) (devoting an entire chapter to the various naturalization requirements, such as 

the English language proficiency requirement and the civics exam, but failing to discuss the 

good moral character requirement); Gerald L. Neuman, Justifying U.S. Naturalization 

Policies, 35 VA. J. INT'L L. 237 (1994) (mentioning but not discussing the good moral 

character requirement). Neither of the two leading immigration law textbooks, each over


This Article analyzes how the good moral character provisions in the INA and 

the current USCIS practices deny naturalization to legal residents with criminal 

history. Part I introduces the concept of citizenship broadly, outlining the important 

and increasing distinction between the status of citizen and that of legal permanent 

resident. It then traces the history of the good moral character requirement for 

naturalization in the United States, contrasting the flexible standard that recognized 

reform applied by courts and encouraged by the agency through the middle of the 

twentieth century with the current, wide-reaching, and permanent statutory bars to a 

good moral character finding for those with criminal convictions and the agency’s 

current penchant for punitive discretion. 

Part II shows how the good moral character requirement affects three groups of 

legal resident immigrants that share one thing in common: they have, at some point 

during their stay in the United States, been arrested for or committed a crime or 

violation of the law. Members of the first group faced formal removal charges but 

were granted relief under immigration law by an immigration judge and were 

welcomed to stay permanently in the United States. Such relief depended on proof 

that the applicant is a valuable, contributing member of society with many and deep 

ties to America. 14 Nevertheless, the INA bars many of them from ever satisfying 

the good moral character requirement. 15 These folks sit in a sort of limbo, neither 

deportable from the United States for their transgressions nor ever able to become 

American citizens. 

The second group is composed of those who apply for naturalization and are 

denied on character grounds in the agency’s discretion or are referred to 

Immigration and Customs Enforcement (ICE) for removal proceedings on the basis 

of prior conduct. Many of these denials are unlawful or unjustified. They happen 

because USCIS trains its adjudicators to deny on character grounds and directs 

them to refer applicants “who appear to be removable” to ICE for detention and 

removal, 16 and adjudicators misapply the law and regulations (sometimes blatantly 

and defiantly) about good moral character. 

The third group consists of the wary, because they have heard about the second 

group. They are eligible to naturalize and are either not removable under the law or 

have solid cases for relief should the government charge them with removal. 

Despite their eligibility, they forgo applying for naturalization out of fear that old, 

minor criminal convictions will lead to federal detention, removal proceedings, or 

deportation. For these residents, the final step in their immigrant journey to 

America becomes an impossible one because the risks are too great. 

The expressively punitive nature of the INA’s current good moral character 

provision and USCIS’s misguided priorities in handling naturalization applications 

force legal resident immigrants with criminal histories to permanently live in the 

shadows of full membership, never able to possess the full rights, privileges, and 

1300 pages long, devotes more than a single page to the good moral character requirement. 

See T. ALEXANDER ALEINIKOFF, DAVID A. MARTIN, HIROSHI MOTOMURA & MARYELLEN 

FULLERTON, IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 117–18 (7th ed. 2011); 

STEPHEN H. LEGOMSKY & CRISTINA M. RODRIGUEZ, IMMIGRATION AND REFUGEE LAW AND 

POLICY 1307 (5th ed. 2009). 

14. See infra Part II.A. 

15. See 8 U.S.C. § 1101(f) (2006). 

16. See infra Part II.B.


respect that citizenship can bring. Part III identifies three main failures with the 

current scheme. First, permanently barring resident immigrants from citizenship, 

whether by statute or by intimidation, frustrates social cohesion by marginalizing 

the excluded and discouraging their investment in their community. 17 Second, 

denying full membership to resident immigrants threatens the integrity of 

democracy. Preventing their political participation creates a class of voteless 

community residents in violation of the consent principle of democracy. 18 Third, 

the current scheme wrongly denies redemption its proper place in the law by 

permanently casting individuals as morally corrupt. This conclusion contradicts the 

intent of the good moral character requirement, as well as criminological research 

on desistance from crime and emerging trends in the law on fixed character 

judgments. 19 

To correct these failures, Part IV proposes reforms. It calls first for legislative 

change—Congress should eliminate the good moral character requirement entirely 

or strike the permanent statutory bar to a finding of good moral character triggered 

by certain criminal convictions. Simply put, there must be space for those legal 

residents with a distant criminal past to demonstrate their current fitness for full 

membership. Should a character requirement remain, the Article proposes changes 

to how USCIS processes naturalization applications, particularly in the handling of 

good moral character assessments. These changes include the small—such as 

ensuring that all naturalization examiners are sufficiently trained and affirmatively 

tell applicants to provide evidence of their good moral character—and the large— 

ending the use of naturalization applications as a source for removal candidates. 

These changes will reduce the number of erroneous denials and denials by 

intimidation. 

The reforms proposed will not impact public safety or diminish the integrity of 

American democracy. To the contrary, they will create a naturalization scheme that 

promotes social cohesion by offering all legal permanent residents the opportunity 

to become full members; advances democracy and equality by encouraging 

unfettered economic, social, and political investment and participation in American 

communities by all; and offers redemptive citizenship to long-time residents by 

recognizing that individuals can and do reform. 

I. U.S. IMMIGRATION AND NATURALIZATION LAW 

In his sweeping history of American citizenship, Rogers Smith writes that 

“American citizenship . . . has always been an intellectually puzzling, legally 

confused, and politically charged and contested status.” 20 The intense scholarly 

interest in citizenship in the last thirty years has often contributed to the muddle, 

largely because different people use the term “citizenship” to mean different things. 

In fact, scholars invoke the concept of citizenship in a host of disciplines to 

17. See infra Part III.A. 

18. See infra Part III.B. 

19. See infra Part III.C. 

20. ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. 

HISTORY 14 (1997).


represent such a wide spectrum of practices and experiences that it is difficult for 

citizenship scholars to avoid talking past each other. 

In its simplest form, citizenship is a legal status that defines the relationship 

between the individual and the state. It denotes who is a full member (citizen) and 

who is not (noncitizen). 21 The nation state owes to citizens the fullest protection of 

its law, and grants to citizens the broadest array of rights. Linda Bosniak calls this 

conception of citizenship “status citizenship.” 22 

Besides status, there are at least three other ways to conceive of citizenship. 23 

Some define citizenship by its content, arguing that to be a citizen means you 

possess a particular or minimum set of rights and privileges. 24 Those who lack the 

full or necessary set are not citizens, or are described as second-class or 

semicitizens. 25 Alternatively, some emphasize behavior when they invoke 

citizenship. Most famously articulated by Aristotle in Politics, this definition 

considers citizenship to be the act of participating in and shaping the political 

community, and often induces appeals to the archetype of “good citizenship.” 26 

Finally, some see citizenship as a component of identity and citizens as a class of 

people who share particular characteristics or culture. 27 

Further underscoring the term’s multivalence, scholars and advocates invoke 

citizenship in a variety of areas outside the relationship between the individual and 

the state. They assert a host of domains of citizenship, including the globe, the 

21. Citizenship and noncitizenship do not exist in a dichotomous relationship. See 

THOMAS ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE 

STATE, AND AMERICAN CITIZENSHIP 5 (2002) (“[C]itizenship defines neither the category of 

the governed [which includes noncitizens] nor that of the governors [residents of Puerto Rico 

and D.C. lack voting representatives in Congress].”); ELIZABETH F. COHEN, SEMI- 

CITIZENSHIP IN DEMOCRATIC POLITICS 36 (2009) (arguing that citizenship is a “gradient 

category”). 

22. LINDA BOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY 

MEMBERSHIP 15, 18 (2006) (defining citizenship as a legal status says nothing about the 

necessary or ideal content of the relationship it describes). 

23. See id. at 18–20 (identifying four conceptions of citizenship: (1) as formal legal 

status; (2) as entitlement to and enjoyment of rights; (3) as the process of democratic 

political engagement; and (4) as an identity of belonging). 

24. See, e.g., T.H. Marshall, Citizenship and Social Class, in CITIZENSHIP AND SOCIAL 

CLASS 3 (1992) (defining citizenship as composed of essential civil, political, and social 

rights). 

25. See COHEN, supra note 21, at 204 (describing semi-citizens as “a group of persons 

living within the boundaries of a liberal democracy who have some, but not all, of the rights 

and status associated with full citizenship in that state”). 

26. See ARISTOTLE, POLITICS 18–21 (W.E. Bolland trans., 1877) (defining citizen as a 

person who has the right to participate in deliberative or judicial office); Martin Luther King, 

Jr., Address to the Montgomery Improvement Association following the arrest of Rosa Parks 

(Dec. 5, 1955), available at http://mlkkpp01.stanford.edu/index.php/kingpapers/article/address_to_first_montgomery_improvemen 

t_association_mia_mass_meeting_at_hol/ (“We are here this evening for serious business. 

We are here in a general sense because first and foremost we are American citizens, and we 

are determined to apply our citizenship to the fullness of its meaning.”). 

27. See, e.g., Chantal Mouffe, Democratic Citizenship and the Political Community, in 

DIMENSIONS OF RADICAL DEMOCRACY 231 (1995).


workplace, the marketplace, the neighborhood, unions, political movements, and 

families. 28 Citizenship carries a symbolic meaning as well, though one that has 

almost as many iterations as proponents. The dominant rhetorical camps emphasize 

citizenship’s contribution to national unity 29 and the special affinity a citizen feels 

for his nation, 30 or exalt it as the fullest manifestation of inclusive, egalitarian 

ideals. 31 

When I use the term “citizenship” in this Article, I mean status citizenship—that 

is, the formal legal status of full membership within the nation state, 32 which brings 

with it certain rights and perhaps some obligations. 33 Conceiving of citizenship as 

a status that confers special rights, without identifying any rights that are minimally 

necessary to make out that status or behaviors and characteristics that define a 

citizen, allows for a critical assessment of both the normative ideals and practical 

realities regarding citizenship in any particular place. Through this lens, this Part 

addresses American citizenship in two sections. The first section offers a truncated 

28. See BOSNIAK, supra note 22, at 20–28 (discussing the various domains and locations 

of citizenship asserted by political and legal theorists). 

29. See SMITH, supra note 20 (arguing that exclusionary citizenship practices have 

provided an important source of cohesion in American society). 

30. See Peter H. Schuck, Membership in the Liberal Polity: The Devaluation of 

American Citizenship, 3 GEO. IMMIGR. L.J. 1 (1989). 

31. See, e.g., HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF 

IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006). 

32. Despite increasing calls for postnational understandings of citizenship, most 

scholars concede that the nation state monopolizes control over the central form of political 

membership. See, e.g., Peter J. Spiro, The Citizenship Dilemma, 51 STAN. L. REV. 597, 616 

(1999) (reviewing ROGER M. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN 

U.S. HISTORY (1997)) (discussing the claim that membership in particular political 

communities will have little or no importance but acknowledging that it is unlikely to be 

realized anytime soon). 

33. I prefer this conception because of the limits of the other three. As practiced, 

citizenship does not guarantee an equal or superior bundle of rights to all citizens. Some U.S. 

citizens with felony records or mental illnesses cannot vote, for example, and those who 

reside in Washington, D.C. and Puerto Rico lack the same representation in Congress of 

citizens who live in the 50 states. See, e.g., MO. CONST. art. VIII, § 2 (“[N]o person who has 

a guardian . . . by reason of mental incapacity, appointed by a court of competent 

jurisdiction . . . shall be entitled to vote . . . .”); Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C. 

2000), aff’d sub nom. Alexander v. Mineta, 531 U.S. 940 (2000), aff’d, 531 U.S. 941 (2000) 

(holding that denying District of Columbia residents the right to vote in congressional 

elections is constitutional). Defining citizenship as participation likewise fails to accurately 

reflect the practiced reality of the status because acting like a citizen does not make one a 

citizen, and those citizens who do not fulfill the ideal do not lose their citizenship. See Trop 

v. Dulles, 356 U.S. 86, 92 (1957) (“Citizenship is not a license that expires upon 

misbehavior.”). By conflating civicness with citizenship, the third definition does better at 

defining normative ideals than political and social fact. Finally, while the view of citizenship 

as an important component of identity holds much popular sway, it has limited application in 

today’s increasingly transnational world and fails to offer a basis for meaningful critique or 

comparison. See Michael Walzer, What Does It Mean To Be an “American”?, 71 SOC. RES. 

633, 633 (2004) (“The adjective [American] provides no reliable information about the 

origins, histories, connections, or cultures of those whom it designates.”).


exposition of the principles and theories underlying American citizenship and 

explains its history and functional meaning today. The second section outlines the 

current requirements for U.S. citizenship, focusing on the good moral character 

requirement. 

A. American Citizenship 

In the United States, citizenship sits atop a hierarchy of legal statuses respecting 

membership in the nation state. The other statuses, in descending order of 

protections offered by the state and rights held by the person, are (2) national; 34 (3) 

lawful permanent resident; (4) refugee and asylee; (5) temporary legal resident, 

such as one admitted on time-limited tourist, student, or work visa; 35 and (6) 

undocumented (illegal) immigrant. 

As historian James Kettner succinctly put it, “The status of ‘American citizen’ 

was the creation of the [American] Revolution.” 36 The colonials quickly went to 

work defining citizenship in the new nation and setting the terms for access to it. 

Yet it was not immediately clear whether the Revolution had created one political 

community or a collection of many. 37 Perhaps this is why the Framers said 

remarkably little about citizenship in the Constitution. The lone reference to 

naturalization in the original document grants Congress the power “[t]o establish an 

uniform Rule of Naturalization.” 38 From its famous preamble, which begins “We 

the People of the United States,” and not “We the Citizens,” 39 the Constitution 

34. The INA confers nationality, but not citizenship, on persons born in or having ties 

with “an outlying possession of the United States.” 8 U.S.C. § 1408(1) (2006). The outlying 

possessions are defined as American Samoa and Swains Island. 8 U.S.C. § 1101(a)(29). 

Certain inhabitants of the Commonwealth of the Northern Mariana Islands, who became 

U.S. citizens by virtue of Article III of the Covenant to Establish a Commonwealth of the 

Northern Mariana Islands, may opt for noncitizen national status. Pub. L. No. 94-241, § 

301(a), 90 Stat. 263, 266 (1976). 

35. U.S. law classifies all noncitizens as immigrants or nonimmigrants. Immigrants 

come to reside permanently in the country; those who enter as immigrants are often referred 

to as lawful permanent residents. See 8 U.S.C. § 1153(a)–(c) (identifying the allocation of 

visas for family-sponsored immigrants, employment-based immigrants, and diversity 

immigrants). Most nonimmigrant categories involve a temporary stay of fixed direction. See 

8 U.S.C. § 1101(a)(15) (listing all possible categories of nonimmigrant aliens). 

36. JAMES KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608–1870, 208 

(1978). One of the grievances laid against King George III in 1776 was that he was 

“obstructing the Laws for Naturalization of Foreigners.” THE DECLARATION OF 

INDEPENDENCE para. 9 (U.S. 1776); see KETTNER, supra, at 104–05 (discussing, for example, 

a 1773 British order-in-council instructing colonial governors not to assent to further 

naturalizations and the colonists’ view that the denial of the right to determine the 

membership of their community was another strike at the liberty and prosperity of 

Americans). 

37. KETTNER, supra note 36, at 209. 

38. U.S. CONST. art. I, § 8, cl. 4. 

39. U.S. CONST. pmbl. Indeed, the Supreme Court does not equate “the people” with 

citizens, but considers some noncitizens to be part of “the People of the United States.” 

United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). In a concurring opinion,


appears to deliberately avoid using the word citizen when possible. It bestows 

rights to persons, not citizens, and sets the boundaries of permissible government 

action in its relations to persons, not citizens. 40 Indeed, the Framers made nothing 

depend on citizenship explicitly (not even the franchise) except the public offices of 

president, congressperson, and senator. 41 Where the Constitution uses “citizen” 

specifically, it does so either to establish requirements for elective office, declare 

that state citizens are entitled to the privileges and immunities of citizens in the 

several states, 42 or prohibit denying the right to vote based on race, sex, or other 

characteristics. 43 

The only constitutional provision that can be said to relate to a qualification for 

citizenship is the Fourteenth Amendment. 44 Enacted following the Dred Scott 

decision 45 and the Civil War, the Fourteenth Amendment provides a simple 

definition of citizen as anyone born or naturalized in the United States. 46 The 

Constitution says nothing else about the qualifications for, or the duties of, 

citizenship. 47 This led political theorist Alexander Bickel to conclude, perhaps 

somewhat aspirationally, that “we live under a Constitution to which the [simple] 

concept of citizenship matters very little, that prescribes decencies and wise 

modalities of government quite without regard to the concept of citizenship.” 48 

Devoid of content, however, citizenship performs no function. If membership 

means nothing, there is no reason to seek it, promote it, or grant it. Not 

Justice Stevens agreed that “the people” should be read to include, at the least, anyone 

“lawfully present in the United States.” Id. at 279 (Stevens, J., concurring). 

40. See ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 35–36 (1975). 

41. See U.S. CONST. art. I, § 2 (requiring House representatives be seven-year citizens); 

id. art. I, § 3 (requiring senators be nine-year citizens); id. art. II, § 1 (requiring president be a 

natural-born citizen). 

42. U.S. CONST. amend. XIV, § 1. 

43. See U.S. CONST. amend. XV (race, color, previous condition of servitude), amend. 

XIX (sex), amend. XXIV (taxes), and amend. XXVI (minimum voting age no higher than 

eighteen). 

44. Rogers v. Bellei, 401 U.S. 815, 829 (1970) (“[A]lthough one might have expected a 

definition of citizenship in constitutional terms, none was embraced in the original document 

or, indeed, in any of the amendments adopted prior to the War Between the States.”). 

45. Dred Scott v. Sandford, 60 U.S. 393 (1857) (holding that people of African descent, 

imported into the United States and held as slaves, and their descendants—whether or not 

they were slaves—were not protected by the Constitution and could never be citizens of the 

United States). 

46. United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898) (stating there are “two 

sources of citizenship, and two only: birth and naturalization”). 

47. BICKEL, supra note 40, at 42–46. This is not to say that citizenship had no 

significance in the early Republic. It was quickly put to work as a racially-exclusive, 

rights-bearing device. Limited to “free white person[s],” it conferred the strongest protection 

of property rights. See Naturalization Act of January 29, 1795, ch. 20, 1 Stat. 414, 414 

(limiting naturalization to “free white person[s]”); KETTNER, supra note 36. 

48. BICKEL, supra note 40, at 53–54. But see COHEN, supra note 21, at 29 (constitutions 

commonly conflate “persons governed” with “citizens” and use the words “citizen” and 

“person” nearly interchangeably, “despite the fact that many of the persons directly governed 

by any given constitution are not full citizens. This makes the text of constitutions unreliable 

sources of ultimate authority on the meaning of citizenship . . . .”).


surprisingly, almost everyone agrees that “citizenship means something.” 49 The 

Supreme Court has variously referred to it as “a status in and relationship with a 

society . . . more basic than mere presence or residence,” 50 “a most precious 

right,” 51 and the “right to have rights.” 52 Congress has called it “the most valued 

governmental benefit of this land.” 53 

Unsurprisingly, American history demonstrates that the status of citizenship has 

mattered quite a lot. 54 As mentioned above, in Dred Scott, the Supreme Court 

justified denying rights to slaves and free blacks based on their lack of 

citizenship. 55 The Civil War and the intense battle after it regarding the full 

implication of the Fourteenth Amendment’s grant of citizenship to African 

Americans revealed the tremendous consequence of access to citizenship. 56 Over 

the course of the twentieth century, American citizenship came to be seen as a 

method for ensuring full and equal treatment by offering an expanded set of rights 

to each citizen. 57 The robust egalitarian potential of citizenship took firm hold in 

the 1950s and 1960s largely through the discourse of the civil rights movement and 

decisions of the Warren Court, which linked equality and rights to citizenship. 58 

This expansive and inclusionary project sought to make sure that all citizens were 

capable of fully participating in society and successfully used citizenship to remove 

longstanding barriers to equal participation and treatment. 59 

49. Slaughter-House Cases, 83 U.S. (16 Wall) 36, 114 (1873) (Bradley, J., dissenting). 

50. Sugarman v. Dougall, 413 U.S. 634, 652 (1973) (Rehnquist, J., dissenting). 

51. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 (1963). 

52. Perez v. Brownell, 356 U.S. 44, 64 (1958) (Warren, C.J., dissenting). 

53. COMM. ON THE JUDICIARY, NATURALIZATION AMENDMENTS OF 1989, H. REP. NO. 

101-187, at 14 (1989). 

54. See generally KETTNER, supra note 36; SMITH, supra note 20. 

55. Dred Scott v. Sandford, 60 U.S. 393 (1857). 

56. See, e.g., Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding state laws requiring 

racial segregation in private businesses); Civil Rights Cases, 109 U.S. 3 (1883) (holding that 

the Fourteenth Amendment did not outlaw racial discrimination by private individuals and 

organizations, and that the Civil Rights Act of 1875 was unconstitutional); and Strauder v. 

West Virginia, 100 U.S. 303 (1880) (holding that a statute restricting jury service to white 

men violated the Equal Protection Clause of the Fourteenth Amendment). 

57. The evolution of the content of citizenship was famously articulated by British 

sociologist T.H. Marshall in a seminal 1950 essay. Marshall, supra note 24. According to 

Marshall, during the eighteenth century a core set of civil rights held by citizens were 

established, such as liberty, freedom of speech and religion, the right to own property and 

make contracts, and access to courts. Id. at 8. Political rights were added to the bundle in the 

nineteenth century as the right to vote was slowly made available to more than just propertyholding 

white males. Id. In the twentieth century, social rights to a basic level of economic 

welfare and security became linked to citizenship and made true equality and liberty for all 

citizens possible. Id. 

58. During Earl Warren’s time as chief justice, the Supreme Court expanded the 

substantive reach of rights in the areas of criminal procedure, due process, voting, speech, 

and privacy and incorporated many of the rights found in the Bill of Rights against the states. 

See MORTON J. HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE (1998). 

59. See ALEINIKOFF, supra note 21, at 72 (noting the Warren Court demonstrated that 

the “ideal of citizenship could be a powerful tool in the extension of rights, the ending of 

second-class citizenship, and the inclusion of previously subordinated and marginalized


Today, the central significance of citizenship is found in the right to vote 60 and 

the right to remain. Citizens cannot be deported. 61 According to immigration 

scholar Cristina Rodriguez, the “indefeasible right to remain . . . is what makes the 

status [of citizen] irreplaceable.” 62 It provides security to the citizen and her family 

and friends in sustained relationships. 63 The right to vote also protects the 

individual by providing an equal voice in the process of choosing leaders and 

defining community norms. 64 Together, these two rights make possible a more 

active and participatory democracy by giving residents a voice in their government 

and eliminating any fear of removal for their activities. 65 

Citizenship brings many other rights and benefits, including traveling with a 

U.S. passport, eligibility for public jobs, becoming an elected official, and not 

having to carry and renew immigration papers. 66 A citizen can bring family 

members to the United States more easily and swiftly than a noncitizen, and can 

obtain citizenship for children born abroad. 67 Moreover, in a liberal democracy like 

the United States, an inclusive, robust citizenship regime promotes equality by 

promising equal treatment to all residents, fosters dynamic political participation by 

groups”); Kenneth L. Karst, Foreword: Equal Citizenship Under the Fourteenth 

Amendment, 91 HARV. L. REV. 1, 21 (1977) (“The Warren Court . . . did not invent the idea 

of equal citizenship, but recognized that its time had come.”). From the perspective of the 

noncitizen, Warren’s privileging of citizenship as a conduit of rights only goes so far. See 

BICKEL, supra note 40, at 53–54. 

60. This was not always so. In the past, noncitizens could vote, while many citizens (for 

example, women and blacks) could not. See generally RON HAYDUK, DEMOCRACY FOR ALL: 

RESTORING IMMIGRANT VOTING RIGHTS IN THE UNITED STATES 15–40 (2006); Jamin B. 

Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical 

Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391 (1993). 

61. Ng Fung Ho v. White, 259 U.S. 276, 284 (1922) (“Jurisdiction in the executive to 

order deportation exists only if the person arrested is an alien.”). Citizens can be 

denaturalized and then deported. See 8 U.S.C. § 1451(a), (e) (2006) (authorizing the 

government to revoke a grant of citizenship that was “illegally procured or . . . procured by 

concealment of a material fact or by willful misrepresentation” and authorizing courts to set 

aside an individual's grant of naturalization upon a criminal conviction for knowingly 

committing naturalization fraud under 18 U.S.C. § 1425). 

62. Cristina M. Rodriguez, 103 AMER. J. INT’L LAW 180, 186–87 (2009) (reviewing 

PETER J. SPIRO, BEYOND CITIZENSHIP: AMERICAN CITIZENSHIP AFTER GLOBALIZATION 

(2008)). 

63. See Cristina M. Rodriguez, The Citizenship Paradox in a Transnational Age, 106 

MICH. L. REV. 1111, 1120–21 (2008) (noting that it is destabilizing for citizen children to 

have a parent whose presence in the United States is not secure). 

64. See Adam Winkler, Note, Expressive Voting, 68 N.Y.U. L. REV. 330, 331 (1993) 

(“[V]oting is a meaningful participatory act through which individuals create and affirm their 

membership in the community and thereby transform their identities both as individuals and 

as part of a greater collectivity.”). 

65. For example, noncitizens are deportable for “any activity a purpose of which is the 

opposition to, or the control or overthrow of, the Government of the United States by force, 

violence, or other unlawful means.” 8 U.S.C. § 1227(a)(4)(A)(iii). This includes protected 

First Amendment activity for which citizens cannot be punished. 

66. U.S. CITIZENSHIP & IMMIGRATION SERVS., A GUIDE TO NATURALIZATION M-476, at 3 

(2011) [hereinafter USCIS, A GUIDE TO NATURALIZATION]. 

67. Id.


granting community members the right to shape their community through the 

franchise, and facilitates social cohesion by offering a unifying identity and a sense 

of belonging in a diverse, transnational world. 68 

Consistent with the many benefits of citizenship, various programs and laws 

encourage noncitizens to naturalize. USCIS, the administrative agency that 

currently handles naturalization applicants, houses an Office of Citizenship to 

foster immigrant integration and encourage U.S. citizenship. 69 Among other things, 

the Office of Citizenship leads initiatives to promote citizenship and provides 

grants, materials, and assistance to national and community-based organizations 

that prepare immigrants for citizenship. 70 Several states also have citizenship 

assistance programs that encourage and help immigrants to naturalize. 71 

Public benefits legislation can also include restrictions or prohibitions for 

noncitizens that incentivize naturalization. For example, most legal permanent 

residents are currently barred from federal means-tested public benefits such as 

Temporary Assistance for Needy Families, Medicaid, and food stamps for five 

years after entering the country, and barred from supplemental security income 

(SSI) until citizenship. 72 Courts have upheld these provisions, finding that 

68. See infra Part III. 

69. See generally Office of Citizenship, U.S. CITIZENSHIP & IMMIGR. SERVICES (DEC. 12, 

2011), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543 

f6d1a/?vgnextoid=a5e314c0cee47210VgnVCM100000082ca60aRCRD&vgnextchannel=a5 

e314c0cee47210VgnVCM100000082ca60aRCRD. The Office of Citizenship was created by 

the Homeland Security Act of 2002 to promote instruction and training on citizenship 

responsibilities for aliens interested in becoming naturalized citizens of the United States, 

including the development of educational materials. Homeland Security Act of 2002, 6 

U.S.C. § 271(f) (2006). 

70. USCIS awarded millions in federal funding in 2011 to support citizenship education 

and preparation programs for lawful permanent residents. See USCIS Announces FY 2011 

Citizenship and Integration Grant Program Recipients $9 Million Awarded to Expand 

Citizenship Preparation Programs for Permanent Residents Fact Sheet, U.S. CITIZENSHIP & 

IMMIGR. SERVICES (Sept. 21, 2011), 

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1 

a/?vgnextoid=61e8a0920dc82310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c 

7755cb9010VgnVCM10000045f3d6a1RCRD. 

71. See ANN MORSE & AIDA ORGOCKA, NAT’L CONFERENCE OF STATE LEGISLATURES, 

IMMIGRANTS TO CITIZENS: A ROLE FOR STATE LEGISLATORS 5 (2004), available at 

http://www.ncsl.org/Portals/1/documents/immig/immigrantstocitizens.pdf. 

72. See generally Personal Responsibility and Work Opportunity Reconciliation Act, 

Pub. L. 104-193 § 400, 110 Stat. 2105, 2260 (1996); 8 U.S.C. § 1613(a) (2006) (stating most 

legal immigrants are ineligible for most federal means-tested public benefits for five years 

after their date of entry); 8 U.S.C. § 1612(a)(3) (barring most permanent residents from 

receiving SSI or food stamps). But see 8 U.S.C. § 1612(a)(2)(A)(ii), (b)(2)(A)(ii), (b)(3)(C) 

(stating asylees and refugees are eligible for food stamps, five years of Medicaid, and seven 

years of SSI); 8 U.S.C. § 1612(a)(2)(E) (articulating that lawful permanent residents legally 

residing in the United States before August 22, 1996, are eligible for SSI benefits); 8 U.S.C. 

§ 1612 (b)(2)(B) (asserting those who have paid social security taxes for ten years are 

eligible for SSI benefits).


encouraging naturalization is a legitimate governmental interest justifying 

discrimination against noncitizens. 73 

The benefits reserved to citizens illustrate that citizenship necessarily operates 

as a tool of exclusion and subordination. Indeed, for much of American history, 

American citizenship was a racially exclusive status. From 1790 until the end of the 

Civil War, naturalization was limited to free whites. 74 African Americans and many 

native-born nonwhites first secured the right to citizenship through the Fourteenth 

Amendment’s birthright citizenship provision. 75 Native American Indians were 

excluded from birthright citizenship until 1924, 76 and many foreign-born 

immigrants continued to be denied the opportunity to naturalize by racial and 

national origin restrictions on citizenship until their final elimination in 1952. 77 

Today, no one is per se barred from naturalizing on the basis of race or national 

origin. 

The important distinction between citizen and noncitizen has become more 

consequential in recent years. At the federal level, Congress passed three major 

pieces of legislation in 1996 that significantly curtailed the rights and benefits of 

noncitizens: the Illegal Immigration Reform and Immigrant Responsibility Act, the 

Antiterrorism and Effective Death Penalty Act, and the Personal Responsibility and 

Work Opportunity Act (also known as the Welfare Reform Act). 78 Many have 

73. For example, the Seventh Circuit held that, although it is not found in Congress’s 

statement of policy in the 1996 Welfare Reform Act, the legitimate government interest in 

encouraging naturalization provided a rational basis for upholding the challenged portions of 

the Act that barred legal permanent residents from receiving SSI and food stamps. City of 

Chicago v. Shalala, 189 F.3d 598, 608 (7th Cir. 1999), cert. denied, 529 U.S. 1036 (2000) 

(“The Act gives resident aliens in need of welfare benefits a strong economic incentive to 

become naturalized citizens.”); see also Hampton v. Mow Sun Wong, 426 U.S. 88, 105 

(1976) (stating that a citizenship requirement for federal service would be “justified by the 

national interest in providing an incentive for aliens to become naturalized”). 

74. Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 103 (repealed 1795) (restricting 

naturalization to any “free white person” who met the residency and character requirements). 

75. See Civil Rights Act of 1866, ch. 31, 14 Stat. 27; U.S. CONST. amend. XIV. There 

has been much recent attention on birthright citizenship, including proposals by members of 

Congress to eliminate or amend it. See, e.g., Rogers M. Smith, Birthright Citizenship and the 

Fourteenth Amendment in 1868 and 2008, 11 U. PA. J. CONST. L. 1329, 1333 (2009). 

76. Citizenship Act of June 2, 1924, ch. 233, 43 Stat. 253, 253 (codified at 8 U.S.C. § 3 

(2006)) (“[A]ll noncitizen Indians born within the territorial limits of the United States be, 

and they are hereby, declared to be citizens of the United States.”). 

77. See generally IAN HANEY LÓPEZ, WHITE BY LAW (10th Anniversary ed. 2006); 

SMITH, supra note 20. For a specific case example, see United States v. Bhagat Singh Thind, 

261 U.S. 204 (1923) (denying naturalization to applicant from India because he was not a 

“white person” as required by statute). Despite this discriminatory history, the arc of U.S. 

citizenship is one of an ever-increasing inclusion. In 2009, the United States naturalized 

people from almost 200 different countries. See OFFICE OF IMMIGRATION STATISTICS, U.S. 

DEP’T HOMELAND SEC., 2009 YEARBOOK OF IMMIGRATION STATISTICS 23, tbl.21 (2010) 

[hereinafter 2009 YEARBOOK OF IMMIGRATION STATISTICS]. 

78. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 

(IIRIRA), Pub. L. 104-208, 110 Stat. 3009; Antiterrorism and Effective Death Penalty Act 

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (increasing the number of crimes that 

made a lawful immigrant ineligible for naturalization and deportable, and making effecting


observed that the 1996 laws “were intended, among other goals, to increase sharply 

the value of American citizenship while reducing the value of permanent legal 

resident status.” 79 Recent state and local anti-immigrant provisions, such as 

Arizona’s Senate Bill 1070, have reinforced the importance of the status of 

citizenship in the United States. 80 

At its core, then, U.S. citizenship is a legal status that defines a relationship 

between the state and the individual. As originally intended, it lacked substantive 

content. Instead of being a rights-bearing device, it was largely a tool of (white) 

cohesion, bringing together a rapidly growing population under a unifying identity 

that helped the nation develop as a nation. Citizenship quickly evolved to deliver 

significant content, although never to all citizens equally. By the last third of the 

twentieth century, the Supreme Court had worked to ensure that all citizens held a 

robust set of political, civil, and social rights, diminishing longstanding barriers to 

equal participation and treatment and bringing America closer to its egalitarian and 

inclusive ideals. Yet throughout this history, and resurgently today, citizenship has 

also served as a tool of exclusion and subordination. While the original racist 

distinctions have faded in modern law, new restrictions and barriers to citizenship 

have arisen. This Article now turns to one such barrier: the good moral character 

requirement. 

B. Good Moral Character Requirement 

With the notable exception of the explicit racial and national origin restrictions 

that lasted until 1952, U.S. naturalization has been relatively easy to obtain 

compared to other nations. 81 Still, various requirements have been imposed to 

that deportation easier, if not mandatory); Personal Responsibility and Work Opportunity 

Reconciliation Act of 1996 (PRWOR), Pub. L. 104-193, 110 Stat. 2105 (eliminating 

immigrant eligibility for various public benefits). Several provisions of PRWOR, also known 

as the Welfare Reform Act, were later found unconstitutional or repealed, or their impact on 

lawful immigrants was reduced. 

79. Peter H. Schuck, The Re-Evaluation of American Citizenship, 12 GEO. IMMIGR. L.J. 

1, 2 (1997). 

80. For the Justice Department’s challenge to S.B. 1070, see United States v. Arizona, 

641 F.3d 339 (9th Cir. 2011), cert. granted 132 S. Ct. 845 (2011). In just the last five years, 

states and localities have passed dozens of laws that authorize local police to enforce federal 

immigration laws, that require proof of legal status to access benefits, and that impose 

English-only rules. See, e.g., Juliet P. Stumpf, States of Confusion: The Rise of State and 

Local Power over Immigration, 86 N.C. L. Rev. 1557 (2008). These measures, while often 

aimed at undocumented immigrants, effectively devalue legal permanent residents by casting 

suspicion on all immigrants and discouraging citizens and businesses from working with and 

catering to them. See, e.g., Rigel C. Oliveri, Between a Rock and a Hard Place: Landlords, 

Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination, 62 VAND. L. REV. 

55, 72–81 (2009) (arguing that such measures lead to discrimination against members of 

ethnic minority groups perceived as foreign regardless of immigration or citizenship status). 

81. See KETTNER, supra note 36 (arguing that the desire to spur population growth and 

economic expansion accounted for liberal naturalization laws); Peter H. Schuck, 

Membership in the Liberal Polity: The Devaluation of American Citizenship, 3 GEO. IMMIGR. 

L.J. 1 (1989); Patrick Weil, Access to Citizenship: A Comparison of Twenty-Five Nationality 

Laws, in CITIZENSHIP TODAY: GLOBAL PERSPECTIVES AND PRACTICES 17 (T. Alexander


guard the gates. This section explains how the good moral character requirement 

has been interpreted by courts, and how the statutory definition has evolved from 

one with no crime-based character bars to today’s broad provisions that trigger a 

permanent, irrebuttable presumption of a lack of good moral character. 

The INA lays out a series of qualifications for those hoping to naturalize. An 

applicant for naturalization must: 

(1) be a legal permanent resident, 82 

(2) be 18 or more years old, 83 

(3) meet both a continuous residence and physical presence requirement, 84 and 

(4) be of good moral character during the required residence period and up to 

the time of admission. 85 

A character requirement for naturalization has existed since 1790. 86 It aims to 

ensure that the applicant is fit for membership, and will not be disruptive or 

destructive to the community. 87 In addition, it was likely meant to protect the 

political process by helping to assure a virtuous polity. 88 

Aleinikoff & Douglas Klusmeyer eds., 2001). 

82. 8 U.S.C. § 1429 (2006). 

83. Id. § 1445(b). 

84. See id. § 1427 for the various residence and presence requirements. 

85. Id. §§ 1427(a)(3), 1430(a)(1); 8 C.F.R. §§ 316.2(a)(7), 316.10, 329.2(d) (2010). The 

United States is not unique in requiring good character for those who acquire citizenship by 

means other than birth. Several democratic states have a similar requirement. Australia, 

France, Ireland, Portugal, South Africa, and the United Kingdom require proof of good 

character, and several other countries require the absence of a serious criminal conviction for 

naturalization, including Austria, Canada, Denmark, Finland, Luxembourg, and Sweden. See 

Weil, supra note 81, at 22–23 tbl.1-2. Further provisions require that the applicant: be 

attached to the principles of the Constitution and well disposed to the good order and 

happiness of the United States, 8 U.S.C. § 1427(a)(3); be willing to bear arms, perform 

noncombatant service, or to perform work of national importance, id. § 1448(a)(5)(A)–(C); 

demonstrate knowledge of English language, U.S. history, and government, id. § 

1448(a)(5)(A)–(C); and not be otherwise barred as a subversive, Communist party member, 

or convicted deserter during war time. Id. § 1425. 

86. See Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 103 (repealed 1795) (requiring 

applicants to demonstrate that they were “of good character”). The word “moral” was added 

in 1795. See Act of Jan. 29, 1795, ch. 20, § 1, 1 Stat. 414, 414 (repealed 1802). This 

followed the tradition that had been set up by most states after independence of requiring 

proof of good character for state citizenship. See KETTNER, supra note 36, at 218. Prior to 

1940, the statute read “behaved as a man of good moral character.” Act of June 29, 1906, ch. 

3592, 34 Stat. 596, 597. Since 1940, the statute has read “has been and still is a person of 

good moral character.” Nationality Act of 1940, ch. 876, 54 Stat. 1138, 1142 (repealed 

1952). This amendment induced no discernible change in good moral character assessments. 

87. See Luria v. United States, 231 U.S. 9, 23 (1913) (“[I]t was contemplated that his 

admission [to citizenship] should be mutually beneficial to the Government and himself, the 

proof in respect of his . . . moral character . . . being exacted because of what [it] promised 

for the future, rather than for what [it] told of the past.”). 

88. Spiro, supra note 13, at 516. “Good moral character” is a requirement for a broad 

range of immigration benefits. A noncitizen seeking relief under the Violence Against 

Women Act (VAWA), must establish that she is a person of good moral character. 8 U.S.C. 

§ 1184(a)(1)(A)(iii)(II)(bb). So must a noncitizen seeking permanent residence under the 

special registry provision. See id. § 1259. Good moral character is a requirement for “special


In most cases, the time period during which good moral character must be 

demonstrated is the five years preceding the naturalization application. 89 The 

applicant bears the burden of establishing her good moral character. 90 The INA 

does not provide an affirmative statutory definition of what constitutes good moral 

character in the naturalization context. 91 Indeed, until 1952, the statute provided no 

guidance whatsoever on the character determination. Where the statute does not bar 

a finding (the specifics of which shall be discussed presently), the standard to be 

applied was judicially defined on a case-by-case basis. 92 

The first reported case to discuss good moral character was the 1878 decision In 

re Spenser. 93 In it, a federal district court held that the standard for determining 

good moral character will vary from generation to generation, and declared that 

“probably the average man of the country is as high as it can be set.” 94 The court 

stated that violating the law ought generally to be considered immoral, but 

recognized distinctions between malum en se and malum prohibitum, 95 as well as 

rule cancellation” under the Nicaraguan Adjustment and Central American Relief Act 

(NACARA), see NACARA, Pub. L. No. 105-100, § 203(b), 111 Stat. 2160, 2196 (1997), 

and certain applications for adjustment of status to lawful permanent residence. See, e.g., 8 

C.F.R. § 245.23(a)(5) (good moral character required for T visa applicants). A nonlawful 

permanent resident who is seeking relief in the form of Cancellation of Removal must 

establish her good moral character during the ten-year period preceding the date of the 

application. 8 U.S.C. § 1228b(b)(1)(B). A noncitizen seeking voluntary departure at the 

conclusion of removal proceedings must establish good moral character for the five-year 

period preceding the application for voluntary departure. See id. § 1229c. 

89. Generally, applicants must be a continuous resident for five years subsequent to 

obtaining legal permanent resident status and continuously reside in the United States from 

the date of filing the application. That five-year period is reduced to three years if the 

applicant is married to a U.S. citizen if the citizen spouse has been a citizen for three years 

and the parties have been living in marital union for three years. See 8 U.S.C. § 1427(a)–(b). 

For Armed Services veterans, the residency period is waived completely. See id. § 1439. 

90. See Berenyi v. District Director, 385 U.S. 630, 637 (1967); 8 C.F.R. § 316.10(a)(1). 

The applicant must demonstrate her good moral character by a preponderance of the 

evidence. See id. § 316.2(b). 

91. See 8 U.S.C. § 1101(f) (outlining who cannot establish good moral character). 

92. Naturalization petitions originally could be filed in “any common law court of 

record” where the applicant had resided for at least the previous year. Act of Mar. 26, 1790, 

ch. 3, § 1, 1 Stat. 103, 103 (repealed 1795). As a result, for much of the nineteenth and 

twentieth centuries, state and federal district courts reviewed naturalization applications 

directly. Only since 1990 have naturalization applications been determined in the first 

instance by an administrative immigration official. See Immigration Act of 1990, Pub. L. No. 

101-649, § 407(d)(14)(B), 104 Stat. 4978, 5044 (giving the Attorney General authority to 

naturalize a citizen without permission from the district court); Etape v. Chertoff, 497 F.3d 

379, 386 (4th Cir. 2007). Federal district courts review appeals of denials de novo. See 8 

U.S.C. § 1421(c). Federal district courts also have jurisdiction over a naturalization 

application if USCIS fails to grant or deny an application before the end of the 120-day 

period after the date on which the naturalization examination is conducted. See id. § 1447(b). 

93. In re Spenser, 22 F. Cas. 921 (C.C.D. Or. 1878). 

94. Id. at 921. 

95. “Malum in se” describes a crime or act that is inherently immoral, such as murder, 

while “malum prohibitum” describes an act that is a crime merely because it is prohibited by 

statute, although the act itself is not necessarily immoral, such as jaywalking. See BLACK’S


between isolated acts of wrongdoing and habitual conduct. 96 Following Spenser, 

most courts applied a flexible, community-based standard for evaluating good 

moral character that used the average citizen as a benchmark. 97 The standard, 

courts made clear, was “not penal; it does not mean to punish for past conduct.” 98 

Instead, it contemplated prior transgressions and recognized the potential for 

reform because “circumstances may change us all.” 99 

Given the statute’s requirement of showing good moral character only during 

the required residence and physical presence period, it was long the law that an 

applicant’s conduct outside that period could not be used per se to deny a finding of 

good moral character. 100 That is, judges could not rely exclusively on convictions 

or criminal conduct to which the applicant admitted from outside the five-year 

period preceding the application to deny naturalization on character grounds. As 

many courts stated, an applicant’s “past is of course some index of what is 

permanent in their make-up, but the test is what they will be, if they become 

citizens.” 101 

Accordingly, the immigration service historically trained its nationality 

examiners to take a redemptive view toward prior criminal conduct. 102 A 

LAW DICTIONARY 978–79 (8th ed. 2004). 

96. See Spenser, 22 F. Cas. at 922. The court added that certain “infamous” crimes, such 

as murder, robbery, theft, bribery, and perjury, should automatically disqualify an applicant 

from demonstrating good moral character, though no authority stated as much. This appears 

to be an early common law articulation of what today is the (much broader) per se bar to a 

finding of good moral character based on criminal convictions found in 8 U.S.C. § 1101(f). 

97. See Lisa H. Newton, On Coherence in the Law: A Study of the “Good Moral 

Character” Requirement in the Naturalization Statute, 46 TEMP. L.Q. 40 (1972); Comment, 

The Evaluation of Good Moral Character in Naturalization Proceedings, 38 ALB. L. REV. 

895 (1974); Note, Naturalization and the Adjudication of Good Moral Character: An 

Exercise in Judicial Uncertainty, 47 N.Y.U. L. REV. 546 (1972). As the above articles show, 

however, little rationality or uniformity emerged from the case law. 

98. Posusta v. United States, 285 F.2d 533, 535 (2d Cir. 1961). 

99. Id. at 535; see, e.g., id. at 535–36 (granting naturalization to applicant despite her 

adultery prior to the five-year statutory period, remarking that “a person may have a ‘good 

moral character’ though he has been delinquent upon occasion in the past”); 

Santamaria-Ames v. INS, 104 F.3d 1127, 1131 (9th Cir. 1996). 

100. See 8 U.S.C. § 1427(a)(3) (requiring proof of good moral character only during the 

required residency period); Ikenokwalu-White v. INS, 316 F.3d 798, 805 (8th Cir. 2003) 

(“[C]onduct predating the relevant statutory time period may be considered relevant to the 

moral character determination . . . but that such conduct cannot be used as the sole basis for 

an adverse finding on that element.”); Santamaria-Ames, 104 F.3d at 1132 (same). That is 

not to say that pre-period conduct could never be considered. See 8 U.S.C. § 1427(e) (“[T]he 

Attorney General shall not be limited to the applicant's conduct during the five years 

preceding the filing of the application, but may take into consideration as a basis for such 

determination the applicant's conduct and acts at any time prior to that period.”); 8 C.F.R. § 

316.10(a)(2) (allowing consideration of pre-period conduct “if the conduct of the applicant 

during the statutory period does not reflect that there has been reform of character from an 

earlier period or if the earlier conduct and acts appear relevant to a determination of the 

applicant's present moral character”). 

101. Posusta, 285 F.2d at 536. 

102. In 1926, Congress formally authorized the federal courts to designate examiners 

from the Bureau of Naturalization to conduct preliminary hearings, and permitted a court to


mid-twentieth century Nationality Manual for agency employees stated that “[i]n 

fixing specific periods during which an applicant must establish his good moral 

character, Congress undoubtedly intended to provide for the reformation of those 

who have been guilty of past misdeeds.” 103 The manual declared that the good 

moral character provision “makes ample allowance for reformation,” so much so 

that it was the service’s position that “[n]otwithstanding that a petitioner may have 

been convicted of murder prior to the statutory period, he may nevertheless be in a 

position to establish good moral character.” 104 

While some courts, particularly early in the twentieth century, felt that any 

violation of the law showed a lack of good moral character, the bulk of midcentury 

good moral character cases exhibited a more nuanced and redemptive view. 105 As 

Learned Hand described the judge’s task at the time, “[w]e must own that the 

statute imposes upon courts a task impossible of assured execution; people differ as 

much about moral conduct as they do about beauty.” 106 The standard permitted a 

finding of good moral character, for example, despite an applicant’s preperiod 

convictions for armed robbery and breaking into a U.S. Post Office with intent to 

commit larceny. 107 It even allowed for a grant of citizenship to an applicant who 

had pled guilty to manslaughter five years and a few weeks before his application 

and had been in prison for part of the five-year period during which he had to 

demonstrate his good moral character. 108 In another case, the court denied a 

grant naturalization without live testimony if it accepted the examiner's favorable findings 

and recommendations. See Act of June 8, 1926, ch. 502, 44 Stat. 709 (codified at 8 U.S.C. § 

399a (1926)), repealed by Nationality Act of 1940, ch. 876, § 504, 34 Stat. 1140, 1172. The 

advisory character of the preliminary examination, and the exclusive jurisdiction of the 

courts to naturalize, was maintained in later codifications. See Immigration and Nationality 

Act of 1952 (INA), ch. 447, §§ 310, 335–36, 66 Stat. 239, 255–58 (codified as amended at 8 

U.S.C. §§ 1421, 1446–47 (2006)); Nationality Act of 1940, ch. 876, §§ 301, 333–34, 54 Stat. 

at 1156 (repealed 1952). In 1990, Congress granted the attorney general authority to 

naturalize a citizen without permission from a court, initiating the current system of 

administrative naturalization. See Immigration Act of 1990, Pub. L. No. 101-649, 

§ 407(d)(14)(B), 104 Stat. 4978, 5044. 

103. IMMIGRATION & NATIONALITY SERV., NATIONALITY MANUAL: FOR THE USE OF 

OFFICERS AND EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE § 773 

(1944). 

104. Id. at § 774 (Mar. 15, 1952). The Manual cited approvingly a district court case in 

which naturalization was granted to an individual who had been convicted of murder in the 

first degree thirty years before his naturalization application. Id. at § 774 (citing In re 

Balestrieri, 59 F. Supp. 181, 182 (N.D. Ca. 1945) (noting that petitioner was pardoned by the 

Governor of California for his crime, and that he has behaved as a person of good moral 

character for the five years preceding his petition)). 

105. See Martin Shapiro, Morals and the Courts: The Reluctant Crusaders, 45 MINN. L. 

REV. 897, 912 (1961) (“[C]ourts came to recognize that if Congress had intended so harsh a 

standard it could easily have said so, and that in adopting a phrase such as ‘good moral 

character’ Congress must have meant to assign to the courts some task other than the purely 

legal one of determining whether a statute had been violated.”). 

106. Johnson v. United States, 186 F.2d 588, 589 (2d Cir. 1951). 

107. See Pignatello v. Attorney General of the United States, 350 F.2d 719 (2d Cir. 1965) 

(finding applicant not statutorily barred from demonstrating good moral character despite old 

convictions). 

108. See Dadonna v. United States, 170 F.2d 964, 966 (2d Cir. 1948) (“Good behavior


naturalization petition because the applicant had deliberately put to death his bedridden, 

blind, mute, and deformed thirteen-year-old son within five years of his 

application; but “wish[ed] to make it plain that a new petition would not be open to 

this objection; and that the pitiable event, now long past, will not prevent [the 

applicant] from taking his place among us as a citizen.” 109 

All of this is to say that present good moral character was long the touchstone of 

the character inquiry for a naturalization applicant. 110 A more stringent, or 

backward-focused, conception of good moral character would result in the archaic 

and uncompromising view that people are beyond redemption or change. As the 

Ninth Circuit noted, “Such a conclusion would require a holding that Congress had 

enacted a legislative doctrine of . . . eternal damnation. All modern legislation 

dealing with crime and punishment proceeds upon the theory that aside from 

capital cases, no man is beyond redemption. We think a like principle underlies 

these provisions for naturalization.” 111 In short, federal courts recognized that, with 

respect to an applicant’s moral character, “Congress has made the judgment that 

rehabilitation is possible.” 112 

USCIS ostensibly adopts this position, claiming to view the good moral 

character requirement as reflecting a congressional intent “to make provision for 

the reformation and eventual naturalization of persons who were guilty of past 

misconduct.” 113 As such, USCIS generally precludes “a denial of naturalization 

when conduct had been exemplary during the statutory period, and the only adverse 

facts concerned offenses committed outside such period.” 114 That said, USCIS can 

deny a naturalization applicant on moral character grounds based on prior criminal 

conduct in two ways: (1) finding that the applicant is barred from showing it by 

statute, and (2) finding that the applicant has not met her burden of establishing her 

good moral character. 

In 1952, Congress revamped the immigration and naturalization laws, passing 

the comprehensive McCarran-Walter Act (known as the INA). 115 It provided the 

first definition (of sorts) for good moral character in the citizenship context. While 

offering no affirmative definition, Congress listed in section 101(f) a series of 

offenses that would preclude a person from demonstrating good moral character if 

they were committed during the five-year period immediately preceding the 

application. 116 Included in the list were habitual drunkenness, adultery, polygamy, 

during incarceration may be one indication of the fitness of the applicant to assume the 

duties of citizenship.”). 

109. Repouille v. United States, 165 F.2d 152, 153–54 (2d Cir. 1947). 

110. See Yuen Jung v. Barber, 184 F.2d 491, 495 (9th Cir. 1950) (stating that Congress 

had the “deliberate intention . . . to make only present good moral character relevant.” 

(emphasis added)). 

111. Santamaria-Ames v. INS, 104 F.3d 1127, 1131 (9th Cir. 1996) (quoting Yuen Jung 

v. Barber, 184 F.2d 491, 495 (9th Cir. 1950)). 

112. United States v. Hovsepian, 422 F.3d 883, 886 (9th Cir. 2005). 

113. U.S. DEP’T OF JUSTICE, INTERPRETATION 316.1 NATURALIZATION REQUIREMENTS, at 

*1, *13 (2001), 2001 WL 1333876. 

114. Id. at *14. 

115. INA, Pub. L. No. 414, ch. 477, 66 Stat. 163. 

116. Id. § 101(f), 66 Stat. at 172 (codified at 8 U.S.C. § 1101 (2006)). According to the 

INS, “the definition governing the ‘good moral character’ criterion . . . has intentionally been 

left open-ended.” 58 Fed. Reg. 49,905, 49,909 (Sept. 24, 1993).


deriving one’s income principally from illegal gambling, and spending more than 

180 days in jail. 117 Section 101(f) also introduced for the first time a permanent bar 

to a good moral character finding based on prior conduct: a murder conviction at 

any time meant an individual could never demonstrate the requisite moral character 

for citizenship. 118 Finally, a catch-all provision stated that “[t]he fact that any 

person is not within any of the foregoing classes shall not preclude a finding that 

for other reasons such a person is or was not of good moral character.” 119 

The 1952 revisions provided courts with some guidance and limited their 

discretion on the character inquiry. It reflected a belief that the prerequisite of good 

moral character should be “even more strictly applied in determining the fitness of 

an applicant for citizenship.” 120 While the new provisions were criticized by the 

President’s Commission on Immigration and Nationality as too narrow and 

mechanical, 121 they did not indicate that any criminality should result in a denial on 

character grounds. Indeed, the act of listing certain behaviors and not others 

undoubtedly left some courts with the impression that a redemptive view should 

remain the approach for all other criminal acts. 122 

Since Congress first introduced explicit bars to a good moral character finding, 

the list has grown exponentially. The greatest expansion followed the invention of 

the term “aggravated felony” for immigration purposes in the Anti-Drug Abuse Act 

of 1988. 123 Part of an effort to reduce international drug trafficking, the statute 

defined three specific crimes as aggravated felonies: murder, any drug trafficking 

crime, and any illicit trafficking in firearms or destructive devices. 124 A noncitizen 

convicted of an aggravated felony after entry was deportable. 125 

The Anti-Drug Abuse Act’s targeted definition of “aggravated felony” suggests 

that Congress did not intend to use the provision to rid the country of all 

immigrants with a criminal record. 126 Two years later, however, Congress 

broadened the reach of “aggravated felony” in two important ways. First, it 

117. Adultery and simple possession of marijuana were removed from the list. 

Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, § 2(c)(1), 95 

Stat. 1611, 1611; H.R. REP. 97-264, at 11 (1981) (“Although a person could still be found to 

lack good moral character if he or she engaged in adultery or were convicted for simple 

possession of marijuana, such a finding would not be mandatory.”). 

118. INA, § 101(f)(8), 66 Stat. at 172. 

119. Id. § 101(f), 66 Stat. at 172. 

120. S. REP. NO. 81-1515, at 712 (1950). 

121. PRESIDENT’S COMMISSION ON IMMIGRATION AND NATURALIZATION, WHOM WE 

SHALL WELCOME 246 (1953) (recommending that the INA offer no definition at all). 

122. Moreover, despite the new statutory character bars, courts nevertheless found 

exceptions and granted naturalization despite the existence of a statutory bar. See, e.g., In re 

Perdiak, 162 F. Supp. 76, 77 (S.D. Cal. 1958) (finding false testimony lacked materiality and 

granting naturalization). 

123. Pub. L. No. 100-690, 102 Stat. 4181 (codified in scattered titles and sections of 

U.S.C.). 

124. See id. § 7342, 102 Stat. at 4469 (codified as amended at 8 U.S.C. § 1101(a)(43)). 

125. See id. 

126. See Andrew David Kennedy, Note, Expedited Injustice: The Problems Regarding 

the Current Law of Expedited Removal of Aggravated Felons, 60 VAND. L. REV. 1847, 1854 

(2007).


expanded the definition of “aggravated felony” to include any “crime of violence” 

for which the person was sentenced to greater than five years and “any illicit 

trafficking in any controlled substance.” 127 Second, it added a provision that barred 

anyone convicted of an aggravated felony at any time after passage of the act from 

ever establishing good moral character. 128 This eliminated an individual inquiry for 

any naturalization applicant convicted of an aggravated felony after November 29, 

1990, substituting a per se conclusion regarding the applicant’s moral character that 

survived indefinitely. 129 

The character bar triggered by a conviction for an aggravated felony applies 

even if the conviction predates the five-year period during which good moral 

character must be shown, even if the conviction was obtained when a person was a 

teenager, 130 and even when there is overwhelming evidence of the individual’s 

rehabilitation since the crime. With this change, Congress imposed the fixed 

character judgment that the rule requiring good character only during the residency 

period rejected and that federal courts and agency training materials had long 

denied. 

Congress broadened the definition of “aggravated felony” further in 1994 and 

1996. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 

(IIRIRA) 131 did the most work, reducing the sentence length requirements for a 

crime of theft or violence to qualify as an aggravated felony from five years to one 

year, and increasing the number of crimes that qualify as aggravated felonies. 132 

127. Immigration Act of 1990, Pub. L. No. 101-649, § 501(a)(3), 104 Stat. 4978, 5048 

(providing that “any crime of violence . . . for which the term of imprisonment imposed 

(regardless of any suspension of such imprisonment) is at least five years” would be 

considered an aggravated felony); 18 U.S.C. § 16 (defining “crime of violence” as “(a) an 

offense that has as an element the use, attempted use, or threatened use of physical force 

against the person or property of another, or (b) any other offense that is a felony and that, by 

its nature, involves a substantial risk that physical force against the person or property of 

another may be used in the course of committing the offense.”). The 1990 Act also modified 

the law to include state law convictions in the definition of “aggravated felony.” See 8 

U.S.C. § 1101(a)(43). 

128. See Immigration Act of 1990, § 509, 104 Stat. at 5051. 

129. See id. 

130. See Donaldson v. Acosta, 163 Fed. Appx. 261 (5th Cir. 2006) (denying 

naturalization based on “aggravated felony” marijuana conviction when respondent was 

nineteen years old even though it was his only conviction, he was granted deferred 

adjudication, and the criminal court later dismissed the case). 

131. IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009-546; see INS v. St. Cyr, 533 U.S. 289, 

296 nn. 4 & 6 (2001) (noting that while “aggravated felony” has “been defined expansively, 

it was broadened substantially by IIRIRA to include more “minor crimes”). 

132. See IIRIRA, § 321, 110 Stat. at 3009-627. IIRIRA also expanded what counts as a 

“conviction” for immigration purposes, created expedited removal and mandatory detention 

for “aggravated felons,” and restricted the availability of relief and judicial review for 

removal orders. See Nancy Morawetz, Understanding the Impact of the 1996 Deportation 

Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936, 1939–43 

(2000).


Today, the definition of “aggravated felony” is broader than ever, covering some 

twenty categories and hundreds of offenses. 133 

That is not to say, however, that an aggravated felony for immigration purposes 

necessarily correlates to a conviction for a serious or violent crime. Indeed, it does 

not even guarantee that the person was convicted of a felony. 134 A person with only 

misdemeanor convictions can be considered an aggravated felon. As just one 

example of many, misdemeanor theft of a videogame valued at approximately ten 

dollars can make someone an aggravated felon for immigration purposes. 135 

Further, the INA’s broad definition of conviction captures criminal cases that result 

in deferred adjudications and suspended sentences via rehabilitative statutes that 

later erase the record of guilt. 136 As a result, drug treatment and domestic violence 

alternative-to-incarceration programs, which frequently vacate pleas after the 

program is completed, and expunged convictions count forever and always as 

convictions for immigration purposes. 137 This makes it possible for someone 

without a criminal record to be considered an aggravated felon for immigration 

purposes. 

The aggravated felony provision is not the only good moral character bar in the 

INA. Many crimes that do not fall within the broad “aggravated felony” definition 

still trigger a bar to a good moral character finding for a certain number of years. 138 

133. See 8 U.S.C. § 1101(a)(43) (2006) (listing such crimes as murder, drug trafficking, 

money laundering, and theft offenses). 

134. Historically, in criminal law, the term “felony” distinguished certain “high crimes” 

or “grave offenses” like homicide from less serious offenses known as misdemeanors. As 

currently used, a felony is any crime punishable by incarceration of more than one year in 

prison. See, e.g., 18 U.S.C. § 3156(a)(3) (defining felony as an offense punishable by more 

than one year in prison); id. § 3559(a)(1)–(8) (classifying offenses punishable by more than 

one year in prison as felonies and those punishable by one year or less in prison as 

misdemeanors). 

135. See United States v. Pacheco, 225 F.3d 148, 149 (2d Cir. 2000) (stating that 

“Congress can make the word ‘misdemeanor’ mean ‘felony’” by classifying misdemeanor 

shoplifting convictions for which an individual received a one year suspended sentence as 

“aggravated felonies” for immigration purposes); United States v. Graham, 169 F.3d 787, 

788 (3d Cir. 1999) (Congress “improvidently, if not inadvertently, [broke] the historic line of 

division between felonies and misdemeanors”). 

136. 8 U.S.C. § 1101(a)(48)(A); see also H.R. REP. NO. 104-828, at 224 (1996) (Conf. 

Rep.) (“[E]ven in cases where adjudication is ‘deferred,’ the original finding or confession of 

guilt is sufficient to establish a ‘conviction’ for purposes of the immigration laws.”). 

137. See Roldan, 22 I. & N. Dec. 512 (B.I.A. 1999) (holding that no effect is to be given 

in immigration proceedings to a state action which expunges, dismisses, cancels, vacates, 

discharges, or otherwise removes a guilty plea or other record of guilt or conviction by 

operation of a state rehabilitative statute). 

138. For example, a conviction or admission to the following bars a good moral character 

finding for up to five years: any controlled substance offense (except a single offense of 

simple possession of thirty grams or less of marijuana); any crime involving moral turpitude 

except for a single offense not punishable by one or more years and that does not involve a 

prison sentence of more than six months (see Flores, 17 I. & N. Dec. 225, 225 (B.I.A. 1980) 

(defining “crime involving moral turpitude” as “conduct which is morally reprehensible and 

intrinsically wrong”)); two offenses of any type and an aggregate prison sentence of five or 

more years; two gambling offenses; and confinement to jail for aggregate period of 180


A host of acts committed during the statutory period also trigger a finding of no 

good moral character, including willfully failing or refusing to support dependents 

and having an extramarital affair that tends to destroy an existing marriage. 139 

Of course, none of these bars is necessary for USCIS to deny citizenship on 

character grounds. As the catch-all provision in 101(f) states, “[t]he fact that any 

person is not within any of the foregoing classes shall not preclude a finding that 

for other reasons such a person is or was not of good moral character.” 140 As will 

be discussed in Part II, USCIS frequently uses this provision to deny naturalization 

to applicants with minor criminal histories. 

In sum, by requiring good moral character only during the residency period, 

Congress inserted a background belief in the possibility of redemption from past 

wrongs into U.S. membership law. No criminal act barred a good moral character 

finding for any applicant until 1952, when the lone exception of murder was made 

a permanent bar. Consistent with this, courts and naturalization examiners 

traditionally applied a forward-looking standard that recognized reform following 

past wrongs. In the last twenty years, immigration law has added thousands of 

permanent statutory bars to a good moral character finding, including those 

triggered by minor offenses. As a result, the INA prevents or hinders a greater 

number of immigrants than ever from proving their present good moral character. 

II. THE SHADOWS OF MEMBERSHIP 

This Part examines how the statutory provisions regarding good moral character 

and current USCIS practices regarding naturalization applications deny citizenship 

to legal permanent residents with criminal histories and force them to live in the 

shadows of membership. It identifies three groups of affected residents. Part II.A 

explains how statutory relief from deportation interacts with the good moral 

character bar to create a class of half-welcome resident immigrants who can neither 

be deported nor naturalize. Part II.B shows that USCIS training, direction, and 

adjudication result in wrongful denials on character grounds for those applicants 

with criminal history. Part II.C identifies a group of wary residents who forgo 

pursuing citizenship because truthfully disclosing past misdeeds creates too great a 

risk of detention or deportation. 

A. Half Welcome 

The INA makes noncitizens deportable for a whole host of postentry criminal 

conduct. 141 From 2001 to 2010, the United States deported over one million people 

days. See 8 U.S.C. § 1101(f)(3); 8 C.F.R. § 316.10(b)(2) (2004). 

139. See 8 C.F.R. § 316.10(b)(3). 

140. See 8 U.S.C. § 1101(f). 

141. See 8 U.S.C. § 1101(a)(43); 8 C.F.R. § 316.10(b)(2)(iv) (individuals can be charged 

as removable for conduct that would be a crime even if they have not been convicted of a 

crime); Press Release, U.S. Immigration and Customs Enforcement, Secretary Napolitano 

Announces Record-Breaking Immigration Enforcement Statistics Achieved Under the 

Obama Administration (Oct. 6, 2010) [hereinafter U.S. Immigration Press Release] (noting 

that half of those removed in fiscal year 2010—more than 195,000 individuals—were 

convicted criminals and boasted that this represented a “more than 70 percent increase . . .


with criminal convictions. 142 In some instances, individuals can seek relief from 

removal under immigration law and be welcomed to stay permanently in the United 

States. 143 Winning such relief often depends on proof that the applicant is a 

valuable, contributing member of society, with many and deep ties to America. 144 

Each year, approximately 30,000 individuals are granted relief from removal. 145 

Nevertheless, many remain permanently barred by statute from demonstrating that 

they possess the good moral character required for citizenship. I call these 

individuals the “half welcome,” because they are allowed to make the United States 

their permanent home despite their transgressions but are not able to become 

citizens. 

Understanding how the INA puts them in that situation requires background 

information on removal law and the various relief provisions available. What is 

popularly known as “deportation,” the INA calls “removal.” 146 Removal 

proceedings begin when the government asserts that a noncitizen is either 

inadmissible or deportable on at least one of many possible grounds, 147 including a 

criminal conviction. 148 A long list of convictions, from serious, violent felonies to 

minor misdemeanors like shoplifting, can lead to deportation. 149 In an 

ever-increasing number of cases, most notably those involving what immigration 

law calls aggravated felonies, 150 removal based on a conviction is mandatory—that 

is, immigration law offers no relief. The broadened scope of removal provisions 

from the previous administration”); U.S. Deportation Proceedings in Immigration Courts, 

TRACIMMIGRATION (2012), http://trac.syr.edu/phptools/immigration/charges/deport_filing 

_charge.php (charting deportation proceedings by charge, and noting that in fiscal year 2009 

and 2010, approximately 40,000 individuals faced removal for criminal charges). 

142. See OFFICE OF IMMIGRATION STATISTICS, U.S. DEP’T HOMELAND SECURITY, 2010 

YEARBOOK OF IMMIGRATION STATISTICS 101 tbl.38 (2011). 

143. See infra Part II.A.1. 

144. See infra Part II.A.1. 

145. Immigration Court Processing Time by Outcome, TRACIMMIGRATION (2012), 

http://trac.syr.edu/phptools/immigration/court_backlog/court_proctime_outcome.php 

(charting the number of individuals granted relief from removal back to 1998, with an 

average of approximately 30,000 grants of relief per year since 2003). 

146. See, e.g., 8 U.S.C. § 1229 (regarding removal proceedings). 

147. Inadmissibility applies to those who have not been lawfully admitted; deportability 

applies to those who have been lawfully admitted to the United States. THOMAS ALEXANDER 

ALEINIKOFF, DAVID A. MARTIN, HIROSHI MOTOMURA & MARYELLEN FULLERTON, 

IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 583 (7th ed. 2011). For grounds of 

inadmissibility, see 8 U.S.C. § 1182(a); for grounds of deportability, see id. § 1227(a). 

148. See 8 U.S.C. § 1227(a)(2) (listing offense that trigger deportability). A conviction is 

not necessary for removal charges. If an individual admits or is found to have engaged in 

conduct that would be a crime, he can be charged as removable for such conduct absent a 

conviction. See 8 C.F.R. § 316.10(b)(2)(iv) (2010). 

149. See 8 U.S.C. § 1227(a)(2) (listing offenses, including those classified as aggravated 

felonies, that trigger deportability); United States v. Pacheco, 225 F.3d 148, 149 (2d Cir. 

2000) (“Congress can make the word ‘misdemeanor’ mean ‘felony’” by classifying 

misdemeanor shoplifting convictions for which an individual received a one year suspended 

sentence as “aggravated felonies” for immigration purposes). 

150. See 8 U.S.C. § 1101(a)(43) (listing offenses that constitute an aggravated felony).


has taken on added importance recently as the Obama administration has prioritized 

criminal-record-based removals. 151 

Immigration authorities primarily learn of a noncitizen’s criminal history in two 

ways. First, they conduct background checks at nearly every stage of the 

immigration process. 152 Noncitizens seeking admission to the United States, and 

those who apply to renew their lawful status or naturalize, must provide 

information about their criminal history. Alternatively, the Secure Communities 

Initiative and the Criminal Alien Program (CAP) identify noncitizens in criminal 

custody who are subject to removal as a result of their convictions. 153 

In removal proceedings, which are conducted before an administrative judge, 

individuals may seek relief from removal under various provisions in the INA. 154 

This relief is separate and apart from challenging the grounds of removal—that is, 

even if found to be removable, an individual may have that removal waived and be 

allowed to remain lawfully in the country. 155 Relief from removal is granted at the 

discretion of the immigration judge, 156 and reflects the belief that, despite these 

151. See Memorandum from John Morton, Assistant Sec’y, Dep’t Homeland Sec. to ICE 

Employees (June 30, 2010) (establishing those who pose a “risk to national security or 

danger to public safety” as “priority one”). An ICE press release noted that half of those 

removed in fiscal year 2010—more than 195,000 individuals—were convicted criminals and 

boasted that this represented a “more than 70 percent increase . . . from the previous 

administration.” U.S. Immigration Press Release, supra note 141. In fiscal year 2009, the 

Office of Immigration Statistics reported that the United States removed 128,345 persons 

with a criminal conviction. 2009 YEARBOOK OF IMMIGRATION STATISTICS, supra note 77, at 

103. To put the increase in broader historical perspective, in 1983, the United States 

deported 863 people on criminal grounds. See Manuel D. Vargas, Immigration 

Consequences of Guilty Pleas or Convictions, 30 N.Y.U. REV. L. & SOC. CHANGE 701, 707 

(2006). Indeed, until 1907, there were no postadmission crime-based grounds of deportation. 

See Juliet Stumpf, Fitting Punishment, 66 WASH. & LEE L. REV. 1683, 1714 (2009) (citing 

Act of Feb. 20, 1907, ch. 1134, § 3, 34 Stat. 898, 900). 

152. See 8 U.S.C. § 1446(a) (requiring a personal investigation of naturalization 

applicants that the Attorney General may waive); Manzoor v. Chertoff, 472 F. Supp. 2d 801, 

809 (E.D. Va. 2007); Fingerprinting Applicants and Petitioners for Immigration Benefits; 

Establishing a Fee for Fingerprinting by the Service; Requiring Completion of Criminal 

Background Checks Before Final Adjudication of Naturalization Applications, 63 Fed. Reg. 

12,979, 12,981 (Mar. 17, 1998) (amending the administrative regulations to codify “[INS] 

policy that [INS] must receive confirmation from the Federal Bureau of Investigation (FBI) 

that a full criminal background check has been completed on applicants for naturalization 

before final adjudication of the application”). 

153. According to ICE, CAP issued over 200,000 charging documents to noncitizens in 

fiscal year 2010, while Secure Communities resulted in the arrest of more than 59,000 

individuals in fiscal year 2010. See OFFICE OF IMMIGRATION STATISTICS, IMMIGRATION 

ENFORCEMENT ACTIONS: 2010, at 3 (2011); U.S. Immigration Press Release, supra note 141 

(noting that the Secure Communities initiative expanded from fourteen jurisdictions in 2008 

to over 660 in the fall of 2010, with plans to expand it to every law enforcement jurisdiction 

nationwide by 2013). 

154. See, e.g., 8 U.S.C. § 1182(h) (discussed infra notes 160–61 and accompanying text). 

155. See, e.g., 8 U.S.C. § 1229b(a) (allowing for the discretionary cancellation of 

removal for those who are found to be deportable in certain circumstances). 

156. The sole exception is withholding of removal under INA section 241(b)(3)—which


noncitizens’ prior crimes, they could be an integral and integrated part of American 

society. 

The requirements for the various forms of relief can be quite complex. The 

waivable removal grounds vary from section to section, the period of residence 

required for eligibility differs, and some individual deportation grounds have their 

own specific waiver provisions. What follows is a brief overview of three forms of 

relief from removal for those with criminal convictions and an explanation of how 

the INA nevertheless denies a path to citizenship to those granted relief. 157 

1. Certain Criminal Offenses: INA 212(h) and Former 212(c) 

Two provisions of the INA make relief available to individuals with certain 

criminal convictions. Former INA section 212(c) provides discretionary relief 

(“212(c) waiver”) to lawful permanent residents who either temporarily leave the 

country and are excludable upon their return, or who have never left but are 

charged with deportability. 158 Each case is judged on its own merits and both 

adverse and positive factors are considered. 159 Under section 212(h), an 

immigration judge can waive certain grounds of inadmissibility 160 when the 

applicant proves (1) that she has rehabilitated from a conviction that is fifteen years 

old or more, 161 or (2) that her removal would cause extreme hardship to a U.S. 

citizen or legal permanent resident parent, spouse, or child. 162 To be eligible, the 

applicant must have lived in the United States for seven consecutive years. 163 

is mandatory provided that the applicant prove his or her life or freedom would be threatened 

in the proposed country of removal on account of race, religion, nationality, membership in a 

particular social group, or political opinion. 8 U.S.C. § 1231(b)(3). 

157. These provisions do not cover all the situations whereby an individual is granted 

legal permanent resident status but cannot naturalize. For example, someone may receive a 

visa, as a victim of physical or mental abuse, and adjust to legal permanent resident status, or 

adjust under the Violence Against Women Act. Id. § 1101(a)(15)(U). That person could still 

be barred from naturalizing because of a criminal conviction that prevents a finding of good 

moral character. 

158. INS v. St. Cyr, 533 U.S. 289, 294–95 (2001). 

159. In re Matter of Marin, 16 I. & N. Dec. 581, 584–85 (B.I.A. 1978). 

160. A section 212(h) waiver can waive the following crimes: crimes of moral turpitude 

except murder or torture; prostitution; one offense of simple possession of thirty grams or 

less of marijuana; and two or more offenses for which the aggregate sentences to 

confinement were five years or more. 8 U.S.C. § 1182(h). Relevant factors for extreme 

hardship include the relative’s family ties to the United States; the extent of ties outside the 

United States; conditions in the country of removal; financial impact of departure from this 

country; and significant health conditions. 

161. Id. § 1182(h)(1)(A). Courts consider many factors when examining rehabilitation, 

including: (1) acceptance of responsibility for criminal conduct; (2) guilty pleas; (3) 

educational efforts; (4) lack of infractions while imprisoned; (5) absence of commission of 

additional crimes; (6) participation in rehabilitation programs; and (7) letters regarding good 

character. See Yepes-Prado v. INS, 10 F.3d 1363, 1372 n.19 (9th Cir. 1993); In re Arreguin 

de Rodriguez, 21 I. & N. Dec. 38 (B.I.A. 1995). 

162. While a 212(h) waiver is unavailable to a person admitted as a legal permanent 

resident who is later convicted of an aggravated felony, a nonlegal permanent resident (such 

as an undocumented immigrant) with an aggravated felony conviction may receive a 212(h) 

waiver. See In re Michel, 21 I. & N. Dec. 1101, 1101 (B.I.A. 1998). But see Martinez v.


Relief under either provision is difficult to achieve. 164 The burden is on the 

applicant to establish both eligibility and that the court should exercise its 

discretion and grant the waiver. 165 Favorable considerations include family, 

property, and business ties in the United States; long residence in the country; 

service in the U.S. Armed Forces; and evidence of good character and rehabilitation 

if a criminal record exists. 166 Relief is highly unlikely in cases involving “violent 

or dangerous crimes, except in extraordinary circumstances” 167 because a 

“heightened showing that [the] case presents unusual or outstanding equities” is 

required. 168 If relief is granted, the applicant retains legal permanent resident status 

or obtains that status. 169 

Congress eliminated eligibility for relief under section 212(c) in 1990 for those 

convicted of an aggravated felony who had served five years in prison. 170 It then 

repealed section 212(c) entirely in 1996. 171 Relief under section 212(c) remains 

available, however, to a dwindling number of legal permanent residents convicted 

by a plea entered prior to April 1, 1997. 172 Currently, approximately one thousand 

Mukasey, 519 F.3d 532, 546 (5th Cir. 2008), as amended (June 5, 2008) (stating that for 

those legal permanent residents who adjust postentry to legal permanent resident status, 

section 212(h)’s plain language demonstrates unambiguously Congress’s intent not to bar 

them from seeking a waiver despite aggravated felony conviction). 

163. 8 U.S.C. § 1182(h). 

164. Caselaw granting a 212(h) waiver based on the rehabilitation prong is nearly nonexistent. 

My research has not yet found a single case granting a 212(h) waiver under the 

rehabilitation prong, perhaps because an immigration judge’s finding of absence of 

rehabilitation is not reviewable. See Al-Shahin v. Holder, 354 F. App’x 583, 583 (2d Cir. 

2009) (denying to reconsider immigration judge’s denial of 212(h) waiver because finding 

was not reviewable). 

165. In re Matter of Marin, 16 I. & N. DEC. 581, 587 (B.I.A 1978). 

166. In re Mendez-Moralez, 21 I. & N. Dec. 296, 301 (B.I.A. 1996). Adverse factors 

include “the nature and underlying circumstances of the exclusion ground at issue, the 

presence of additional significant violations of this country's immigration laws, the existence 

of a criminal record and, if so, its nature, recency and seriousness, and the presence of other 

evidence indicative of an alien's bad character or undesirability as a permanent resident of 

this country.” Id. 

167. 8 C.F.R. 212.7(d) (2010). 

168. Yepes-Prado v. INS, 10 F.3d 1363, 1366 (9th Cir. 1993). 

169. INS v. St. Cyr, 533 U.S. 289, 295 (2001). 

170. Immigration Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat. 4978, 5052. 

171. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 

Pub. L. No. 104-208, sec. 304, § 204B(b), 110 Stat. 3009-546, 3009-597. 

172. INS v. St. Cyr, 533 U.S. 289, 294–95 (2001). For current eligibility requirements, 

see 8 C.F.R. § 1212.3. The Immigration Act of 1990 amended section 212(c) to ban 

aggravated felons from relief under section 212(c) if they had served a term of imprisonment 

of at least five years. Immigration Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat. at 

5052. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) further 

amended section 212(c) by reducing the class of legal permanent residents eligible for relief 

from removal. AEDPA, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277. Section 440(d) 

of the AEDPA made the following ineligible for relief under 212(c): (1) aggravated felons; 

(2) those convicted of certain controlled substance offenses; (3) those convicted of firearm 

offenses; (4) those convicted of certain miscellaneous crimes;, and (5) those convicted of 

multiple “crimes involving moral turpitude.” See AEDPA, § 440(d), 110 Stat. at 1277.


lawful residents annually demonstrate that their ties, value and service to the 

community, and genuine rehabilitation are so overwhelming that relief is granted 

under 212(c) and they are welcomed as permanent residents. 173 Consider, for 

example, Courtney Donaldson, who legally entered the United States from Jamaica 

at the age of fourteen. 174 In 1990, at the age of nineteen, he was found guilty of 

possession of marijuana. 175 The court granted him deferred adjudication and, in 

1991, placed him on probation for ten years. 176 Three and a half years later, the 

court dismissed the case and discharged Mr. Donaldson from probation. 177 In 1997, 

Mr. Donaldson applied for naturalization. 178 The INS denied his application on the 

basis that his conviction, which constituted an aggravated felony, statutorily barred 

him from ever demonstrating the requisite good moral character. 179 Not only that, 

the government initiated removal proceedings against him based on his 

conviction. 180 Mr. Donaldson requested and was granted a 212(c) waiver of 

deportation, in part because he was married to a U.S. citizen, with whom he had 

two citizen children; attended church with his family; had been steadily employed 

since 1989; paid his taxes; and had no further arrests or convictions. 181 The waiver 

permitted him to remain in the United States as a legal resident for the rest of his 

adult life, but he remains barred from ever naturalizing because his conviction 

triggers the permanent aggravated felon character bar. 182 

Another example involves Catalina Arreguin de Rodriguez, who was convicted 

in 1993 of importing marijuana into the United States. 183 She was forty years old at 

the time and had been residing in the United States since 1970. 184 It was her first 

Section 304(b) of IIRIRA repealed section 212(c), effective April 1, 1997. IIRIRA, § 304, 

110 Stat. at 3009-586. . 

173. After a bump in the number of people granted relief under former 212(c) following 

St. Cyr, the numbers have shrunk. In fiscal year (FY) 2006, 1437 individuals were granted a 

212(c) waiver, 1405 in FY 2007, 1049 in FY 2008, 857 in FY 2009, 859 in FY 2010, and 

892 in FY 2011. EXEC. OFFICE FOR IMMIGRATION REVIEW, U.S. DEP’T OF JUSTICE, FY 2010 

STATISTICAL YEARBOOK R3 tbl.15 (2011) [hereinafter FY 2010 STATISTICAL YEARBOOK]; 

EXEC. OFFICE FOR IMMIGRATION REVIEW, U.S. DEP’T OF JUSTICE, FY 2011 STATISTICAL 

YEARBOOK R3 tbl.16 (2012) [hereinafter FY 2011 STATISTICAL YEARBOOK]. A downward 

trend is likely to continue. 

174. Donaldson v. Acosta, 163 Fed. App’x 261, 262 (5th Cir. 2006). 

175. Id. 

176. Id. 

177. See id. 

178. Id. 

179. Id. at 263. 

180. Id. at 262. 

181. Plaintiff’s Motion for Summary Judgment at *1, Donaldson v. United States 

Citizneship & Immigration Services, No. H 04 0911 (S.D. Texas 2004), 2004 WL 3722503, 

aff’d sub nom Donaldson v. Acosta, 163 Fed. App’x 261 (5th Cir. 2006). 

182. When Mr. Donaldson filed a second naturalization application in 2001, more than a 

decade after his lone conviction as a teenager for possession of marijuana, he was denied 

again, because his conviction forever barred him from demonstrating good moral character. 

See Donaldson, 163 Fed. App’x at 263. 

183. In re Arreguin de Rodriguez, 21 I. & N. Dec. 38, 39 (B.I.A. 1995). 

184. See id. at 38–39.


and only conviction. 185 She was incarcerated and removal proceedings were 

initiated against her. 186 The Board of Immigration Appeals (BIA) overturned the 

immigration judge’s denial of a 212(c) waiver, crediting Ms. Arreguin de 

Rodriguez’s efforts at rehabilitation during her incarceration, as well as her nearly 

twenty years of lawful permanent residence in the United States and her five U.S. 

citizen children. 187 Despite her long permanent residence, which the BIA called an 

“unusual or outstanding equity,” 188 Ms. Arreguin de Rodriguez cannot ever 

naturalize because her drug conviction is an aggravated felony and prevents her 

from establishing her good moral character. 

Countless others find themselves in a similar limbo—welcome to stay, despite 

their past crimes, because of their demonstrated ties and rehabilitation, but unable 

to become full members of their community. 

2. 209(c)—Adjustment of Status for Refugees/Asylees 

Each year, the United States takes in tens of thousands of asylees and 

refugees. 189 A grant of refugee status or asylum does not automatically confer 

lawful permanent resident status. To become a lawful permanent resident, asylees 

and refugees must apply for adjustment of status under INA section 209. 190 To be 

eligible for adjustment, a person must, among other things, be admissible. 191 

Criminal convictions obtained after a grant of asylum, but before filing an 

application for adjustment, can make someone inadmissible. 192 Section 209(c) of 

the INA allows for a waiver of certain grounds of inadmissibility. 193 In adjudicating 

a waiver application, the applicant’s equities are balanced against the seriousness of 

the criminal offense that made her inadmissible. 194 

185. Id. at 42. 

186. See id. at 39. 

187. Evidence of her efforts toward rehabilitation included her acceptance of 

responsibility for her crime, her pursuit of further education while in prison, her exemplary 

disciplinary record in prison, and her participation in a church ministry. Id. at 40. 

188. Id. at 41. 

189. In 2009, the United States admitted 74,602 persons as refugees and granted asylum 

to 22,119 individuals. OFFICE OF IMMIGRATION STATISTICS, DEP’T OF HOMELAND SEC., 

ANNUAL FLOW REPORT, REFUGEES AND ASYLEES: 2009 (2010). There is no content 

distinction between the two statuses. The refugee application is made outside of the United 

States prior to entry while asylum is available to those already in the United States. 

190. 8 U.S.C. § 1159(b) (2006). 

191. Id. § 1159(b)(5). The other things are (1) be physically present in United States for 

more than one year after being granted asylum; (2) continue to be a “refugee” under 8 U.S.C. 

§ 1101(a)(42)(A); and (3) not “firmly resettled” in any foreign country. Id. § 1159(b). 

192. See In re K-A-, 23 I. & N. Dec. 661, 662 (B.I.A. 2004). 

193. See 8 U.S.C. § 1159(c) (granting waiver “for humanitarian purposes, to assure 

family unity, or when it is otherwise in the public interest”). Refugees and asylees are unique 

noncitizens because they have no home country they can safely return to. Adjusting their 

immigration status to legal permanent resident allows them to take an important (and 

required) step on the path to becoming an American citizen. 

194. See In re Jean, 23 I. & N. Dec. 373, 383 (A.G. 2002) (noting that those who commit 

violent or dangerous crimes must show that denial of adjustment to legal permanent resident


For example, removal proceedings were brought against a Cambodian refugee 

who was convicted by plea of second-degree robbery and sentenced to three to six 

years in prison. 195 An en banc panel of the BIA upheld an immigration judge’s 

grant of a 209(c) waiver to her, noting her four U.S. citizen children, a legal 

resident husband, her remorse for her prior actions, and over fifteen years of 

residence in the United States. 196 From that, the BIA concluded that her “conviction 

is not indicative of her overall character and that she is a person who would be an 

asset to our society.” 197 Nevertheless, her conviction makes her an aggravated 

felon, and the INA permanently bars her from becoming a citizen. 198 

In sum, the same statute that affords relief from removal to individuals with a 

criminal record, and grants them lawful permanent resident status, shuts the door to 

full membership. It does so even though a judge has recognized their ties to the 

community, credited their rehabilitation, and welcomed them to stay permanently 

in the United States. While there is undeniable humanitarianism behind these 

waiver provisions, Part III, below, explains the significant drawbacks to 

permanently denying these residents an opportunity to become citizens. 

B. Denied on Character Grounds 

Immigrants who apply for naturalization do so at the risk of triggering removal 

proceedings against them. 199 The sweeping changes in immigration law, described 

above, have made many crimes, which did not previously carry the consequence of 

deportation, grounds for removal. In addition, many immigrants, who were not 

removable at the time they committed or admitted to a crime, may now be 

deportable for that conduct. 200 

This section examines what happens to those with criminal history who apply to 

naturalize. First, it looks at those whose criminal history statutorily bars them from 

showing the necessary good moral character, and discusses a USCIS policy 

would result in exceptional and extremely unusual hardship, and even that might not be 

enough). It is unlikely that an individual with an aggravated felony conviction would apply 

for adjustment, because the upside (becoming a legal permanent resident) does not come 

close to the downside (being placed in removal proceedings and deported). However, the 

waiver would be sought if removal proceedings were initiated. 

195. In re H-N-, 22 I. & N. Dec. 1039, 1049–50 (B.I.A. 1999). 

196. Id. at 1045. 

197. Id. But see In re Jean, 23 I. & N. Dec. at 382 (finding the majority opinion in H-N- 

upholding the grant of a 209(c) waiver “to be wholly unconvincing”). 

198. See 8 U.S.C. §1101(a)(43)(g) (2006) (identifying any theft offense for which the 

term of imprisonment is more than one year as an aggravated felony). 

199. The same risk lies for those who apply to adjust their status, and most of the 

practices discussed in this Article apply to those who seek to adjust their status to legal 

permanent resident. For example, an asylee who seeks to adjust her status to legal permanent 

resident can trigger removal proceedings by submitting her application if she has a criminal 

conviction since her arrival. 

200. Nancy Morawetz, Rethinking Retroactive Deportation Laws and the Due Process 

Clause, 73 N.Y.U. L. REV. 97, 97 (1998). Some immigrants plead guilty without being aware 

that their plea subjects them to deportation. Padilla v. Kentucky, 130 S. Ct. 1473, 1473 

(2010) (holding that noncitizens can base an ineffective assistance of counsel claim on the 

failure to inform of the immigration consequences of a plea bargain).


memorandum that directs naturalization examiners to issue removal charging 

documents against applicants “who appear to be removable” or refer them to ICE 

for possible detention and removal. Second, it discusses those who are not per se 

barred but are denied on character grounds via the agency’s exercise of discretion. 

1. Statutorily Barred and Referred Removal 

The story of Qing Hong Wu illustrates the precarious process currently faced by 

naturalization applicants with a criminal history. Mr. Wu legally immigrated to the 

United States from China with his parents at the age of five. 201 In 1995, at the age 

of fifteen, he committed several muggings, with other teenagers in Manhattan; 

received two convictions for robbery in adult court; and was sentenced to three to 

nine years at a reformatory. Good behavior earned his release after three years. 

From there, he supported his mother by working, moving his way up from data 

entry clerk to vice president for internet technology at a national company. A dozen 

years after his convictions, engaged to be married to a U.S. citizen, Mr. Wu applied 

for citizenship, disclosing in his application his robbery convictions. He had no 

other contact with the criminal justice system and was lauded by family, friends, 

and coworkers as a hard-working, upstanding member of the community. 

Under immigration law, Mr. Wu’s convictions are aggravated felonies, making 

him statutorily unable to demonstrate his current good moral character and, thus, 

permanently ineligible for citizenship. 202 Instead of denying his application, USCIS 

transferred Mr. Wu’s case to ICE (the agency responsible for immigration 

enforcement), he was promptly placed in federal detention as a criminal alien, and 

mandatory removal proceedings were initiated against him. Remarkably for Mr. 

Wu, public outcry and media attention led New York’s governor to pardon Mr. 

Wu, and just two months later, his application was granted and he was sworn in as 

an American citizen. 203 In so doing, Governor Paterson noted that “Qing Hong 

Wu’s case proves that an individual can, with hard work and dedication, rise above 

past mistakes and turn his life around.” 204 The criminal court judge who had 

originally sentenced Mr. Wu for his youthful robberies, and who supported his 

201. For details of Mr. Wu’s story, see Nina Bernstein, After Governor’s Pardon, an 

Immigrant Is Sworn in as a Citizen, N.Y. TIMES, May 29, 2010, at A20 [hereinafter 

Bernstein, After Governor’s Pardon]; Nina Bernstein, Judge Keeps Word to Immigrant Who 

Kept His, N.Y. TIMES, Feb. 19, 2010, at A1 [hereinafter Bernstein, Judge Keeps Word]; Nina 

Bernstein, Paterson Rewards Redemption with a Pardon, N.Y. TIMES, Mar. 7, 2010, at A29 

[hereinafter Bernstein, Paterson Rewards]. 

202. See 8 U.S.C. § 1101(a)(43)(g) (identifying any theft offense for which the term of 

imprisonment is more than one year as an aggravated felony). 

203. See Bernstein, After Governor’s Pardon, supra note 201; Bernstein, Paterson 

Rewards, supra note 201. Mr. Wu’s pardon petition was supported by his sentencing judge, 

family, friends, and employers, the New York City District Attorney, the Police Benevolent 

Association, and several Chinese, Asian, Pan Asian, and immigrant organizations from 

across the country. Bernstein, Judge Keeps Word, supra 201. 

204. Bernstein, Paterson Rewards, supra note 201.


pardon petition, called the end result “truly a magnificent affirmation of American 

values and justice.” 205 

The result in Mr. Wu’s case is a just one, welcoming to the citizenry someone 

who residents and leaders consider a valuable and contributing member of the 

community. But his story also serves as an indictment of current naturalization 

policy. It should not require the extraordinary remedy of an executive pardon 206 to 

open a path to membership for people like Mr. Wu. Frustrated because it does, 

Governor Paterson announced not long after the Wu case’s resolution that New 

York would convene a special Immigration Pardon Panel that would accelerate the 

consideration of pardon petitions filed by legal immigrants for old or minor 

criminal convictions, with the aim of preventing them from being deported. 207 

Paterson said that “some of our immigration laws . . . are embarrassingly and 

wrongly inflexible. . . . In New York we believe in renewal. . . . In New York, we 

believe in rehabilitation.” 208 In a press release announcing the panel’s first pardons, 

Governor Paterson declared: 

That immigration officials do not credit rehabilitation, nor account for 

human suffering is adverse to the values that our country 

represents . . . . I have selected cases that exemplify the values of New 

York State and that of a just society: atonement, forgiveness, 

compassion, realism, open arms, and not retribution, punitiveness and a 

refusal to acknowledge the worth of immigration. 209 

Of course, not all immigrants with a criminal record subjecting them to 

deportation are as fortunate as Mr. Wu or the thirty-four immigrants in New York 

who received a pardon from Governor Paterson. 210 For immigrants across the 

nation with a criminal record, applying for naturalization brings potential or 

205. Bernstein, After Governor’s Pardon, supra note 201. 

206. At the time, Mr. Wu’s was only the twelfth pardon granted by New York since 

1973. See Kirk Semple, Hip-Hopper Is Pardoned by Governor, N.Y. TIMES, May 24, 2008, 

at B1; New York Clemency Decisions, NEW YORK STATE DEFENDERS ASSOCIATION 

http://www.nysda.org/html/clemency.html (listing New York clemency decisions since 

1995). This is part of a national pattern. The percentage of federal clemency applications 

granted has declined sharply in recent decades. Rachel E. Barkow, The Ascent of the 

Administrative State and the Demise of Mercy, 121 HARV. L. REV. 1332, 1348 (2008). 

207. Danny Hakim & Nina Bernstein, New Paterson Policy May Reduce Deportations, 

N.Y. TIMES, May 4, 2010, at A1; see also Elizabeth Rapaport, The Georgia Immigration 

Pardons: A Case Study in Mass Clemency, 13 FED. SENT’G REP. 184 (2000–01). 

208. Hakim & Bernstein, supra note 207. 

209. Press Release, Governor Paterson Announces Pardons (Dec 6, 2010) [hereinafter 

Press Release, Governor Paterson]. All told, Governor Paterson granted twenty-four pardons 

to immigrants facing deportation for their crimes. Celeste Katz, Gov. Paterson Grants 24 

Pardons to Immigrants, N.Y. DAILY NEWS (Dec. 24, 2010), 

http://www.nydailynews.com/blogs/dailypolitics/2010/12/gov-paterson-grants-24-pardonsto-immigrants; 

Press Release, Governor Paterson, supra. 

210. Some may argue that the system works just as it should, reserving for the 

extraordinary cases the grant of an executive pardon. But New York is just one state of fifty, 

and Governor Paterson is already out of office there.


mandatory banishment instead of membership. While USCIS does not publish data 

on how many naturalization applicants it refers to ICE, anecdotal reports from 

practitioners support the fact that it happens quite frequently. 211 

An internal agency memo shows that the original course of Mr. Wu’s case (from 

naturalization applicant to removal charges) is precisely what the agency wants. On 

July 11, 2006, Associate Director for Domestic Operations of USCIS, Michael 

Aytes, issued “Policy Memorandum No. 110: Disposition of Cases Involving 

Removable Aliens” (“Aytes Memo”). 212 The internal USCIS memo prioritizes the 

removal of individuals by ICE over the adjudication of naturalization petitions by 

instructing immigration service officers (ISOs) to filter out naturalization applicants 

with a criminal record and refer them for removal proceedings. 213 While the Aytes 

Memo is not classified, it is an interoffice memo stamped “for office use only,” 

written to agency directors and chiefs, and was not intended for public view. 214 

The Aytes Memo categorizes naturalization applicants 215 with arrests or 

criminal histories into five groups. 216 I will focus on applicants who fall under the 

memo’s “Egregious Public Safety Cases” (EPSC) category because the memo 

directs that they be referred directly and immediately to ICE for determinations of 

removability. 217 EPSC is a term of art that covers any case where an applicant “is 

under investigation for, has been arrested for (without disposition), or has been 

convicted of” one of ten categories of conduct listed in the memo. 218 The Aytes 

211. See Letter from The Legal Aid Society of New York, Immigration Law Unit, to 

Alejandro Mayorkas, Director, USCIS 1, 12 (May 24, 2010) (copy on file with author) 

[hereinafter LAS Letter] (describing “the placement of a substantial and increasing number 

of naturalization applicants into removal proceedings” and describing a long-time lawful 

permanent resident who was arrested at his naturalization interview and charged with 

removal in 2009 due to a twenty-six-year-old conviction for possession of a weapon in the 

fourth degree). 

212. Memorandum from Michael Aytes, Associate Director, Domestic Services, U.S. 

Citizenship & Immigration Services, Dep’t of Homeland Sec. Disposition of Cases 

Involving Removable Aliens to National Security & Records Verification (July 11, 2006) 

[hereinafter Aytes Memo]. 

213. Id. at 4. 

214. Id. 

215. The Memo’s directives apply not just to naturalization petitions but to all cases 

where USCIS is making an adjudication, such as applications for permanent residence. Id. 

216. The five groups are: (1) egregious public safety cases, (2) other criminal cases, (3) 

cases where the Notice to Appear (NTA) is prescribed by regulation, (4) cases denied by 

USCIS based on fraud, and (5) all other cases. Id. at 2–7. 

217. Id. at 2. 

218. The ten categories are: (1) murder, rape, or sexual abuse of a minor; (2) illicit 

trafficking in firearms or destructive devices; (3) offenses relating to explosive materials or 

firearms; (4) crimes of violence for which the term of imprisonment imposed or where the 

penalty for a pending case is at least one year; (5) offenses relating to the demand for or 

receipt of ransom; (6) child pornography; (7) offenses relating to peonage, slavery, 

involuntary servitude, and trafficking in persons; (8) offenses related to alien smuggling; (9) 

human rights violators, known or suspected street gang members, or Interpol hits; and (10) 

re-entry after an order of exclusion, deportation or removal subsequent to a conviction for a 

felony where permission to reapply for permission has not been granted. Id. at 2–3.


Memo directs USCIS to refer all EPSC applicants to ICE and either hold in 

abeyance the naturalization application or deny it outright, on the presumption that 

removal will follow the referral. 219 This holds even though the ultimate disposition 

of the arrest that makes an applicant an EPSC may not make the individual 

removable from the country. Indeed, the applicant may not have committed the 

alleged act, the applicant may be acquitted, or the charges may be dropped. 

The mandatory referral for removal persists even though there are at least two 

ways that the EPSC definition captures individuals who are eligible to naturalize. 

First, it includes arrestees even though the INA and the regulations on good moral 

character do not include bars for merely suspected activity that the applicant does 

not admit to doing. 220 Second, while the INA bars a finding of good moral 

character only for those convicted of an “aggravated felony” after November 29, 

1990, the EPSC definition covers those with “aggravated felony” convictions from 

any time. 221 By instructing examiners to deny these applications, the Aytes Memo 

creates per se bars to naturalization that are not found in the INA. 

The agency is so keen on deporting these aspiring citizens that the Aytes Memo, 

for the first time, gave local USCIS district offices the authority to place applicants 

directly into removal proceedings. 222 In addition, it encourages ICE to request that 

“USCIS promptly schedule an interview for the purpose of ICE arresting and 

taking the alien into custody[,]” stating that recent cases where people were 

detained at their naturalization interview “demonstrated the effectiveness of this 

strategy.” 223 Practitioners have confirmed that USCIS has instructed several of their 

clients to appear for an interview related to their naturalization application, and 

those clients were detained by ICE on arrival. 224 

The expansive definition of EPSC in the Aytes Memo means that a significant 

number of individuals who are eligible to naturalize are wrongly denied or are 

detained and placed in removal proceedings before their naturalization application 

is adjudicated. Delio Nunez is just one example. 225 Mr. Nunez, who is fifty-one 

219. Id. at 3–5. 

220. Id. at 3 (“[E]ven without a conviction, an alien may be an egregious public safety 

case . . . .”). 

221. The Aytes Memo nowhere states a time restriction for triggering offenses. Id. 

222. See JoJo Annobil, The Immigration Representation Project: Meeting the Critical 

Needs of Low-Wage and Indigent New Yorkers Facing Removal, 78 FORDHAM L. REV. 517, 

518 (2009) (“Previously, USCIS immigration service officers (ISOs) only had the authority 

to grant or deny an immigration benefit—such as naturalization or permanent residence—but 

not the authority to commence immigration proceedings against those applicants whose 

cases they had denied.”). Annobil notes that “[i]n fiscal year 2007, USCIS placed 23,211 

applicants in removal proceedings and referred 813 applicants every month to ICE for 

placement into proceedings.” Id. at 518–19. 

223. Aytes Memo, supra note 212, at 4 & n.7. 

224. LAS Letter, supra note 211, at 12 (describing long-time lawful permanent resident 

who was arrested by ICE at his naturalization interview in 2009 and placed in removal 

proceedings due to a twenty-six-year-old conviction for possession of a weapon in the fourth 

degree). As the letter notes, because most naturalization applicants are not represented by 

counsel, those cases familiar to attorneys likely only represent the tip of the iceberg. 

225. See Erica Pearson, Citizen Bid Turns Into Deportation Rap, N.Y. DAILY NEWS, Nov. 

3, 2010, at 24.


years old, came to the United States as a child from the Dominican Republic. 226 In 

2007, he applied for citizenship and disclosed that he spent two years in jail in the 

1980s after he pleaded guilty to armed robbery. 227 Mr. Nunez eventually received a 

call from an ICE agent telling him that he was being charged with removal and that 

he had to surrender to federal authorities. 228 Because Mr. Nunez’s conviction 

occurred prior to 1990, he is not per se barred from demonstrating his current good 

moral character. 229 Nevertheless, the conviction makes him removable, 230 and the 

Aytes Memo instructs naturalization examiners to refer individuals like Mr. Nunez 

to ICE for removal proceedings. 

This is not a result that the INA demands, nor is it clear that it is the properly 

prioritized result. USCIS promotes naturalization, distributing information via its 

website and elsewhere that highlights the benefits of naturalization and encourages 

immigrants to apply. 231 For the same agency to affirmatively use the naturalization 

process as a source for removal candidates contradicts its mission and is 

fundamentally unfair. 232 Many who apply for naturalization are long-time residents 

of the United States with citizen family members. 233 The mere fact that someone 

applies for citizenship should not place her at a higher risk of removal than 

noncitizens who do not apply to naturalize. 

Singling these individuals out for removal proceedings also poorly allocates 

limited agency resources. Some individuals referred for removal will qualify for 

relief, prevail during their removal proceedings, and seek naturalization again, 

where the result will ultimately be the same had the naturalization application been 

adjudicated completely in the first place. 

226. Id. 

227. Id. 

228. Id. 

229. See 8 U.S.C. § 1427 (2006); 8 C.F.R. § 316.10 (2010); U.S. CITIZENSHIP & 

IMMIGRATION SERVS., ADJUDICATOR’S FIELD MANUAL ch. 73.6 (2011), available at 

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1.html [hereinafter AFM]; 

Amended Definition of “Aggravated Felony” and the Section 101(f)(8) Bar to Good Moral 

Character, Genco Op. No. 96-16, (INS Dec. 3, 1996), at *2, available at 1996 WL 

33166347. 

230. Armed robbery is an “aggravated felony” that triggers deportability. 8 U.S.C. §§ 

1101(a)(43), 1227(a)(2). 

231. See, e.g., USCIS, A GUIDE TO NATURALIZATION, supra note 66; Office of 

Citizenship, U.S. CITIZENSHIP & IMMIGRATION SERVS., 

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgn 

extoid=a5e314c0cee47210VgnVCM100000082ca60aRCRD&vgnextchannel=a5e314c0cee4 

7210VgnVCM100000082ca60aRCRD. 

232. For a discussion of agencies who seek to achieve multiple, and sometimes 

conflicting, missions, see Eric Biber, Too Many Things To Do: How to Deal with the 

Dysfunctions of Multiple-Goal Agencies, 33 HARV. ENVTL. L. REV. 1 (2009). 

233. The typical successful naturalization applicant is married, thirty-nine years old, and 

has been a legal permanent resident for at least six years. See JAMES LEE, U.S. CITIZENSHIP & 

IMMIGRATION SERVS., ANNUAL FLOW REPORT: U.S. NATURALIZATIONS: 2010 4 (2011) 

(noting that 67% of persons naturalized in 2010 were married, and 30% were between the 

ages of 35 and 44).


A further impact of removal charges against naturalization applicants is that 

INA section 318 bars consideration of a naturalization application when removal 

proceedings are ongoing. 234 Section 318 was enacted to prevent individuals from 

circumventing removal proceedings by applying for naturalization in district court, 

which would serve as a complete defense to removal. 235 It therefore stands for the 

proposition that ongoing proceedings should not be interrupted by the initiation of a 

proceeding in another forum. But, for applicants like Qing Hong Wu and Delio 

Nunez, naturalization is not being used as an end-run around removal proceedings 

because they filed the naturalization application first. Yet, because of the Aytes 

Memo, removal proceedings triggered by naturalization applications now halt the 

prior naturalization proceeding. Therefore, the Aytes Memo’s directive to shelve 

naturalization applications and proceed to removal is contrary to the statute. 

2. Discretionary Denials 

This Section demonstrates the intimidating and counterproductive ways that 

USCIS addresses good moral character issues for naturalization applicants whose 

criminal record does not statutorily bar a good moral character finding. It reviews 

the USCIS Adjudicator’s Field Manual (AFM) that instructs examiners in making 

good moral character decisions and concludes that it is essentially a primer on how 

to deny applicants on character grounds. Using actual good moral character denials, 

evidence shows that some examiners are misapplying the law and regulations, and 

consequently, the examiners are erroneously using the good moral character 

requirement to deny naturalization to those with minor criminal backgrounds. 

a. Agency Instruction to Naturalization Examiners 

From 1790 until 1990, exclusive jurisdiction to grant naturalization rested with 

courts. 236 In response to increasing naturalization processing backlogs, Congress 

passed the Immigration Act of 1990, which was intended to streamline the 

naturalization process by establishing a system of administrative naturalization. 237 

234. 8 U.S.C. § 1429. 

235. See Shomberg v. United States, 348 U.S. 540, 544 (1955) (Congress enacted section 

318 to end the “race between the alien to gain citizenship and the Attorney General to deport 

him.”). 

236. The first Naturalization Act entrusted any common law court of record to hear and 

decide a naturalization petition. Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103, 103–04 (1790). 

Federal courts were granted concurrent jurisdiction in 1795. See Act of Jan. 29, 1795, ch. 20, 

§ 1, 1 Stat. 414, 414–15 (1795) (allowing a supreme, superior, district, or circuit court of any 

state or territory, or a circuit or district court of the United States, to handle naturalization 

actions). This continued throughout the nineteenth and twentieth centuries. See 

Naturalization Act of 1906, ch. 3592, § 3, 34 Stat. 596, 596 (conferring exclusive jurisdiction 

to naturalize aliens as citizens of the United States on specified courts, including United 

States circuit and district courts in any State, and all courts of record in any State or Territory 

having a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which 

the amount in controversy is unlimited.”) 

237. Pub. L. No. 101-649, sec. 401–08, 104 Stat. 4978, 5038–47 (1990) (codified as 

amended in scattered sections of 8 U.S.C.).


Effective October 1, 1991, Congress gave the attorney general authority to 

naturalize a citizen without permission from the district court. 238 This authority was 

delegated to the executive agency responsible for immigration and naturalization 

matters by regulation. 239 Today, that agency is called the United States Citizenship 

and Immigration Services. 

The USCIS AFM is a several hundred-page document that details USCIS 

policies and procedures for adjudicating immigration benefit applications and 

petitions. 240 It is a significant information source for ISOs, the USCIS employees 

who review and decide naturalization petitions in the first instance. Chapters 71 

through 76 of the AFM relate to naturalization, with chapter 73.6 devoted 

exclusively to good moral character considerations. 241 

The opening paragraph of the AFM chapter on good moral character begins with 

two telling remarks that show how USCIS wants ISOs to approach the character 

issue. The AFM notes that “[a]lthough the law specifies that the good moral 

character requirement applies to the statutory period,” and “[a]lthough the focus 

should be on conduct during the statutory period,” it makes clear that the character 

inquiry “should extend to the applicant’s conduct during his or her entire 

lifetime.” 242 The manual notably fails to clarify the rule that examiners cannot rely 

exclusively on pre-period conduct to deny an application on character grounds. 243 

Instead, the AFM urges ISOs to “obtain a complete record of any criminal, 

unlawful, or questionable activity in which the applicant has ever engaged, 

regardless of whether such information eventually proves to be material to the 

moral character issue.” 244 

After outlining the permanent and conditional character bars to establishing 

good moral character, 245 the remaining three-quarters of the chapter fall under the 

subheading “Finding a Lack of Good Moral Character.” 246 In it, the AFM teaches 

ISOs how to deny an application on character grounds and how to make sure that 

238. The major change was made by a 1990 statute, which was followed by an 

adjustment in 1991 that slightly enhanced the role of the courts. See id. sec. 401, 104 Stat. at 

5038, amended by Miscellaneous and Technical Immigration and Naturalization 

Amendments of 1991, Pub. L. No. 102-232, §§ 101–02, 105 Stat. 1733, 1733–36 (codified 

as amended in scattered sections of 8 U.S.C.). 

239. 8 C.F.R. § 310.1 (2010). 

240. AFM, supra note 229. 

241. Id. 

242. Id. at ch. 73.6(a). A grammarian might notice the repeated use of the subordinating 

conjunction “although,” suggesting that the idea in the subordinated clauses (what the law 

specifies and what the focus should be) is less important than the idea in the main clause of 

the sentence (look everywhere for bad character evidence). 

243. Interpretation 316.1 Naturalization Requirements, INS Interp. Ltr. 316.1 (2001) at 

*14, available at 2001 WL 1333876 (as long as the pre-period conduct is not a post- 

November 29, 1990 “aggravated felony”). 

244. AFM, supra note 229, at ch. 73.6(b). The AFM also reminds ISOs that Congress 

defines “conviction” broadly for immigration purposes to include, among other things, 

expungements. Id. at ch. 73.6(c). 

245. Id. at ch. 73.6(a)–(c). 

246. Id. at ch. 73.6(d).


such a decision will stand up to a legal challenge. 247 It does so primarily by 

presuming that any prior criminal history denotes bad character. For example, if the 

examiner determines that the applicant’s criminal conviction constitutes an 

aggravated felony but that conviction occurred before November 29, 1990, and thus 

does not preclude a good character finding, the AFM teaches examiners how they 

can still deny on character grounds. 248 The manual states that the applicant’s 

actions during the statutory period must reflect a reform of character. 249 The AFM 

does not explain where this requirement comes from (it is nowhere in the law or 

regulations) and offers no guidance on what reflects reform. It does not, for 

example, instruct ISOs that character references from community members would 

help resolve the inquiry. Nor does it state that a lack of subsequent arrests, by itself, 

reflects positively. 250 Instead, it prioritizes the collection of negative evidence about 

the applicant. 251 So determined is the agency to find negative information, the AFM 

suggests that ISOs ask applicants the following Kafkaesque questions: “Have you 

ever been in a police station?” and “Have you ever had a record sealed by a judge 

and been told that you did not have to reveal the criminal conduct?” 252 

The AFM’s current language contrasts sharply with the agency’s mid-century 

view of the good moral character requirement. 253 As mentioned above, the 1944 

Nationality Manual endorsed a decidedly redemptive view toward prior criminal 

conduct. It stated that “Congress undoubtedly intended to provide for the 

reformation of those who have been guilty of past misdeeds” 254 and declared that 

the good moral character provision “makes ample allowance for reformation,” so 

much so that it was the service’s position that “[n]otwithstanding that a petitioner 

may have been convicted of murder prior to the statutory period, he may 

nevertheless be in a position to establish good moral character.” 255 

The punitive and unforgiving framing of the character inquiry in the AFM 

combined with the Aytes Memo to produce what advocates describe as a growing 

number of naturalization denials on good moral character grounds and 

naturalization applicants placed in removal proceedings. 256 

247. Id. 

248. Id. 

249. Id. at ch. 73.6(d)(3)(A). 

250. Rashtabadi v. Immigration & Naturalization Serv., 23 F.3d 1562, 1571 (9th Cir. 

1994) (stating that evidence of no further arrests or convictions is “at least probative of . . . 

rehabilitation” in context of waiver inquiry). 

251. AFM, supra note 229, at ch. 73.6(b). 

252. Id. 

253. See supra Part I.B. 

254. IMMIGRATION & NATIONALITY SERV., DEP’T OF JUSTICE, NATIONALITY MANUAL: FOR 

THE USE OF OFFICERS AND EMPLOYEES OF THE IMMIGRATION & NATURALIZATION SERVICE § 

773 (1944). 

255. Id. § 773–74. 

256. Part of the increase in character-based denials may be a reaction to criticisms aimed 

at the immigration service following the 1995–96 Citizenship USA (CUSA) Initiative. 

CUSA was meant to reduce the backlog of pending naturalization applications, with a goal 

of processing over one million naturalization applicants by the end of 1996. A 2000 Office 

of Inspector General (OIG) report on CUSA concluded that the “integrity of naturalization 

adjudications . . . suffered badly as a result of INS’ efforts to process naturalization


b. Good Moral Character Denials 

A look at recent naturalization denials and a deposition of an ISO demonstrate a 

further problem with regard to good moral character determinations: erroneous 

understandings of the applicable law leading to wrongful denials on character 

grounds. Some are wrongful because the examiner thought the denial was 

compelled when it was not, while others are inexplicable. 

Consider the case of Kichul Lee. In 1999, Mr. Lee, a South Korean immigrant, 

received a $152 ticket for collecting three dozen too many oysters along a Puget 

Sound, Washington beach. 257 He promptly paid his fine, and several years later 

applied for naturalization. 258 He had no contact whatsoever with the criminal 

justice system. USCIS denied his application, stating that Mr. Lee failed to 

establish his good moral character. 259 The Washington State Department of Fish 

and Wildlife officer who issued the ticket said that “I wouldn’t consider [the 

infraction] serious at all,” and “[i]t would have been very nice if [the immigration 

officer] had contacted me to discuss the case.” 260 But the ISO did not. 

Mr. Lee’s experience is not isolated. So pervasive was the practice of denying 

citizenship based on minor infractions that Lee was the named plaintiff in a class 

action lawsuit against USCIS alleging a policy and practice of unlawfully denying 

naturalization on the basis of minor arrests or criminal convictions and considering 

only negative character evidence. 261 The government settled the matter, agreeing to 

improve its citizenship decision-making concerning applicants’ good moral 

character and better train and supervise adjudicators to ensure that they make 

legally proper decisions. 262 It also agreed to reopen and reconsider hundreds of 

naturalization applications that were denied for a lack of good moral character 

based on a minor criminal conviction decided by the Seattle, Spokane, and Yakima 

applications more quickly.” OFFICE OF THE INSPECTOR GEN., DEP’T OF JUSTICE, SPECIAL 

REPORT: AN INVESTIGATION OF THE IMMIGRATION AND NATURALIZATION SERVICE’S 

CITIZENSHIP USA INITIATIVE: EXECUTIVE SUMMARY 5 (2000). Much of the criticism focused 

on hasty or incomplete criminal background checks that allowed applicants with potentially 

disqualifying criminal histories to be naturalized. See id. at 14–20. In addition, the OIG 

found that the service failed to provide adequate guidance concerning the evaluation of good 

moral character. Id. at 17–18. The upshot of the CUSA outcry was that the agency needed to 

scrutinize much more carefully the criminal backgrounds of naturalization applicants and 

ensure that those who lacked good moral character not be admitted to the citizenry. 

257. Chris McGann, One Mistake Robs Man of Citizenship: Moral Character Standard 

Challenged in Class Action Suit, SEATTLE POST-INTELLIGENCER, May 10, 2004, at A1; 

Lornet Turnbull, Goal of U.S. Citizenship Reached, SEATTLE TIMES, Feb. 9, 2005, at B1. 

258. McGann, supra note 257, at A1. 

259. Id. 

260. Id. 

261. First Amended Complaint Class Action at 16, Lee v. Ashcroft, No. C04-449L 

(W.D. Wash. May 4, 2004) (identifying, for example, Plaintiff Sam Ta, who was denied 

citizenship on good moral character grounds on the basis of a violation of the Seattle 

Municipal Code for “a non-violent argument with his then-girlfriend, who was standing 

outside a locked door at the time of the incident”). 

262. Settlement Agreement, Lee v. Gonzales, No. C04-449-RSL (W.D. Wash. July 10, 

2005).


offices during a specific time period. 263 Rejecting USCIS’s austere view of the 

character requirement, the federal judge in the case ordered Lee sworn in as a U.S. 

citizen. 264 As a result of the class litigation, at least 158 of those who took 

advantage of the process were also granted naturalization. 265 

A more recent case from New York shows that the practice was not confined to 

the Pacific Northwest and has not stopped. Mr. A’s naturalization application was 

denied by the New York office because, within the five-year statutory period 

immediately preceding his application, Mr. A received a traffic ticket for “failure to 

signal” a turn. 266 The naturalization examiner decided that, on the basis of that 

ticket, Mr. A lacked the good moral character necessary for citizenship. 267 Mr. A 

appealed the denial and was eventually naturalized, though not before he had to 

waste his own, and the agency’s limited, resources in overturning the wrongful 

denial. 268 

In other situations, ISOs deny naturalization on character grounds mistakenly 

believing that the applicant is barred from demonstrating good moral character 

when in fact he is not. For example, USCIS denied the naturalization petition of 

Mr. M, a Vietnam veteran whose only criminal blemish was a 1976 court martial 

for selling marijuana while in the armed services. 269 The examiner stated that the 

court martial constituted an “aggravated felony,” and someone convicted of an 

“aggravated felony” “at any time” could not demonstrate good moral character. 270 

This is simply not the law. The INA, the regulations, the AFM, and an INS general 

counsel opinion letter all state that convictions entered before November 29, 1990, 

that constitute aggravated felonies do not preclude a finding of good moral 

character. 271 

A deposition of ISO Eladio Torres illustrates how the miscarriages described 

above can occur. The deposition relates to Mr. Torres’s denial of naturalization to 

Vernon Lawson, a Vietnam veteran who was convicted in 1986 for 

263. The Lee v. Gonzales litigation identified 1213 persons who had been denied on good 

moral character grounds in the Seattle District alone; of which approximately 500 had 

subsequently reapplied and been granted citizenship. Declaration of Michael P. Conricode, 

Lee v. Gonzales, No. C04-449 RSL *7 (W.D. Wash. Jan. 27, 2006). 

264. Turnbull, supra note 257, at B1. 

265. Email to author from Robert Gibbs, lead counsel on behalf of plaintiffs in Lee v. 

Gonzalez, (Mar. 4, 2011) (on file with author). 

266. LAS Letter, supra note 211, at 12. 

267. Id. 

268. While justice was done for Mr. A, USCIS never issued a decision on the appeal of 

the naturalization denial; instead, it simply sent Mr. A a notice to attend his swearing-in 

ceremony. As a result, the record is not corrected and ISOs are not educated in the proper 

scope of the character inquiry for naturalization. Id. at 12–13. 

269. Telephone Interview with Amy Meselson, Legal Aid Soc’y of N.Y. Immigration 

Law Unit (Dec. 22, 2010). 

270. Id. 

271. See 8 U.S.C. § 1427 (2006); 8 C.F.R. § 316.10 (2010); AFM, supra note 229, at ch. 

73.6; Amended Definition of “Aggravated Felony” and the Section 101(f)(8) Bar to Good 

Moral Character, Genco Op. No. 96-16, (INS Dec. 3, 1996), at *2, available at 1996 WL 

33166347.


manslaughter. 272 ISO Torres correctly concluded that Mr. Lawson’s conviction 

constituted an “aggravated felony” for immigration purposes. 273 He wrongly 

concluded, as did the ISO in Mr. M’s case above, that Mr. Lawson was “precluded 

by [§ 101(f)(8)] of the INA from establishing good moral character because during 

the period for which good moral character is required to be established, you 

remained, or are, one who at any time has been convicted of an aggravated 

felony.” 274 When asked about his understanding of the law, Mr. Torres testified that 

he had “come across” information that says a person whose aggravated felony 

conviction is before Nov. 29, 1990, is not precluded from establishing good moral 

character, but said that “[t]he way I read the law, um, I’m not so sure that that’s the 

case.” 275 Despite being shown the AFM, section 316.10 of the Code of Federal 

Regulations, and acknowledging familiarity with an INS General Counsel Opinion 

letter—each of which clearly states that pre-1990 aggravated felonies do not trigger 

the bar—Torres insisted that he read the law differently. 276 

The deposition of Mr. Torres betrayed further problems with the way some ISOs 

conduct the character inquiry. As mentioned above, naturalization applicants often 

find themselves in removal proceedings based on criminal history disclosed in their 

applications. While USCIS cannot approve a naturalization application for an 

applicant who is in removal proceedings, 277 a removal charge is not the same as a 

removal order. Every day, immigration judges rule that removal charges are 

unfounded or not proven, or they grant relief from removal under various statutory 

relief provisions. 278 Indeed, one in four removal cases end either in termination for 

272. Deposition of Eladio Torres, Lawson v. USCIS, No. 09 Civ. 10195 (S.D.N.Y) (July 

14, 2010). 

273. Id. at 160. 

274. Id. 

275. Id. at 57. 

276. Id. at 200. After Lawson’s administrative appeal was denied by USCIS, he appealed 

to federal court. There, the judge overturned the denial and granted Lawson’s naturalization 

application. Lawson v. U.S. Citizenship & Immigration Servs., No. 09 Civ. 10195 (S.D.N.Y. 

July 7, 2011). The court found that USCIS was “plainly wrong in its invocation of the 

statutory bar for an aggravated felony conviction,” a position which the Government did not 

even seek to defend before the federal court. Id. at 32. The court then discussed Lawson’s 

life in the twenty-five years since he committed his crime, and found that Lawson is and has 

been a person of good moral character. Id. at 3. The court noted that “no man is beyond 

redemption” and stated that “the manner in which he has overcome his challenges is a 

testament to his character.” Id. at 37–38. The court further chastised the Government for 

pursuing Lawson’s removal, calling it “mean-spirited at worst and puzzling at best” and 

opining that it “betray[ed] a desire on the part of the Government to continue punishing 

Lawson for his actions of so long ago.” Id. at 41. 

277. 8 U.S.C. § 1429 (“[N]o application for naturalization shall be considered by the 

Attorney General if there is pending against the applicant a removal proceeding . . . .”). 

278. Through the first six months of fiscal year 2012, 12,560 immigration court 

proceedings were terminated because there were no grounds for removal and another 16,744 

individuals were granted some relief from removal (not including voluntary departure). See 

Immigration Court Processing Time by Outcome, TRACIMMIGRATION (2012), 

http://trac.syr.edu/phptools/immigration/court_backlog/outcomes.php.


lack of grounds for removal or a grant of relief from removal. 279 Nevertheless, Mr. 

Torres testified that “when an alien is placed in deportation, removal, it’s an 

indication that his presence as a local permanent resident, or otherwise, is no longer 

desirable in this country. And so, that’s—that’s Congress’s intent. Congress said, 

send this person out of the country.” 280 

The view that convictions that make an immigrant removable requires a denial 

of naturalization on character grounds is not limited to those applicants already in 

removal proceedings. Nevertheless, USCIS denied the naturalization petition of 

Mr. O., whose sole 1989 weapon possession conviction is not an aggravated felony, 

concluding pithily that because his conviction constitutes a deportable offense, he 

cannot prove good moral character. 281 At the time, Mr. O was not in removal 

proceedings and had no outstanding order of removal against him. 282 

What emerges from these examples is that agency personnel tasked with 

adjudicating naturalization applications hold false impressions about the eligibility 

of those with a criminal past. Some naturalization examiners mistakenly believe 

that an aggravated felony conviction from any time precludes a finding of good 

moral character; some mistakenly believe that a conviction for a deportable offense 

precludes a finding of good moral character; and some mistakenly believe that 

pending removal proceedings indicate an incompatibility with membership. In each 

instance, ISOs are getting the law wrong. They are not required to deny a good 

moral character finding in any of those instances. 

These USCIS practices are subverting the statutory and regulatory scheme 

governing naturalization. In ways not required by the INA, and in some instances in 

clear contradiction of the law and congressional intent, removability is trumping 

eligibility for citizenship as the agency uses the naturalization process to effectuate 

removal policies. The expanded deportation provisions, the AFM, the Aytes Memo, 

and misinformed examiners are increasingly preventing naturalization on character 

grounds. Individuals eligible to naturalize, who are encouraged to naturalize by a 

host of laws, policies, and programs, and who Congress meant for adjudicators to 

examine by focusing on their present character, are instead being judged harshly by 

their past misdeeds and placed in removal proceedings. 

279. In FY 2011, over 25,000 immigration court proceedings (11.6% of decisions) were 

terminated because there were no grounds for removal, while another 31,763 individuals 

were granted some form of relief (not including voluntary departure) from removal (14.4%). 

FY 2011 STATISTICAL YEARBOOK, supra note 173, at D2. In FY 2010, nearly 25,000 

immigration court proceedings (10.9% of decisions) were terminated because there were no 

grounds for removal, while another 30,838 individuals were granted some form of relief (not 

including voluntary departure) from removal (13.8%). FY 2010 STATISTICAL YEARBOOK, 

supra note 173, at D2. 

280. Deposition of Eladio Torres, supra note 272, at 190–91. 

281. Telephone Interview with Amy Meselson, supra note 269. Mr. O was subsequently 

placed in removal proceedings, where he has a strong case for relief via cancellation of 

removal, and will likely apply again for naturalization if relief is granted. Id. 

282. Id.


C. Scared Citizenship-Less 

A third group of lawful immigrants denied citizenship are those chilled from 

applying. All are eligible to naturalize, in that they meet the statutory requirements 

and are not barred from showing their good moral character. Some are not 

removable under the law, others have persuasive cases for relief should they be 

charged with removability, while some are not eligible for relief. Despite their 

eligibility for naturalization, the fear that old, minor criminal convictions or 

conduct will lead them to the situations faced by Mr. Wu and Mr. Nunez dissuades 

them from applying. I call this group “scared citizenship-less” because the process 

is simply too risky. 

There is no data on the number of eligible people who forgo applying for 

citizenship because the risks are so great. Undoubtedly, some do so because they 

have no defense to removal or lack a compelling case for relief, and do not wish to 

draw attention to their whereabouts. Anecdotal evidence nevertheless supports the 

notion that thousands of long-time permanent residents eligible for naturalization 

choose not to apply. Lawyers in the Legal Aid Society of New York’s Immigration 

Law Unit describe the chilling effect that using naturalization applications to 

identify removal targets has on the pursuit of citizenship by their clients. 283 One 

such client, Pablo, immigrated from the Dominican Republic and had been a lawful 

permanent resident since 1970. 284 Pablo’s sisters, wife, children, and grandchildren 

are all U.S. citizens, and his three brothers are lawful permanent residents. 285 He is 

a stable family man who supports himself by working in construction and 

maintenance. 286 However, Pablo fears applying for naturalization because of two 

old criminal convictions: criminal possession of a weapon in the fourth degree from 

1982 and disorderly conduct from 1986. 287 Despite forty years in the country, more 

than twenty-five since his last criminal conviction, and eligibility for naturalization, 

Pablo faces a considerable risk of being placed in removal proceedings should he 

apply for naturalization. 288 

Judith Bernstein-Baker, executive director of the Hebrew Immigrant Aid 

Society and Council Migration Service of Philadelphia, has observed the same 

reticence in the immigrant community she serves. She wrote in a 2007 article that 

“[a]necdotally, we have met many individuals, including respectable professionals, 

whose problems in their youth prompted them to forego applying for naturalization 

because of the expanded grounds for deportation” and increased risk that the 

citizenship application process will turn instead into removal proceedings. 289 

283. LAS Letter, supra note 211, at 10–11. 

284. Id. at 11. 

285. Id. 

286. Id. 

287. Id. 

288. See Brooks v. Holder, 621 F.3d 88 (2d Cir. 2010) (holding that N.Y. conviction for 

second-degree criminal possession of a weapon constitutes a crime of violence for 

immigration purposes). 

289. Judith Baker-Bernstein, Citizenship in a Restrictionist Era: The Mixed Messages of 

Federal Policies, 16 TEMPL. POL. & CIV. RTS. L. REV. 367, 376 (2007).


By making the naturalization process fraught with risk, USCIS actively 

discourages eligible lawful residents from pursuing citizenship. Instead of having 

their adopted country formally recognize the social fact of their membership, they 

remain in the shadows. In the case of those lawful residents who came to the 

United States as children, or asylees and refugees who fled dangerous conditions, 

there is no other place to go that would be home. Each has little choice but to 

remain permanent nonmembers of the American community. 

In sum, various provisions of the INA offer relief from the severe consequence 

of removal for those with a criminal past. This reflects Congress’s intent to 

recognize rehabilitation and preserve family and community ties that immigrants 

develop. The waiver hearing ensures that those who are not sufficiently connected 

to the American community, or who are likely to reoffend, do not stay. This relief 

framework indicates a view of immigration administration as a necessarily flexible 

institution that pays close attention to individual circumstances when making 

membership decisions. Nevertheless, the same statute that offers relief denies a 

path to full membership. In addition, USCIS policies and practices effectively deny 

citizenship to those whose criminal conviction does not bar them from establishing 

their good moral character, both through misapplication of the law and by 

intimidating noncitizens from even applying. In the next Part, I show why this is 

problematic. 

III. THE FAILURES OF THE CURRENT REGIME 

The previous two Parts showed how the INA and USCIS deny naturalization to 

long-time permanent residents with a criminal past. This Part identifies three main 

failures with the current scheme. First, the current framework permanently 

relegates some residents to a subordinate, outsider status, frustrating the citizenship 

regime’s potential to promote social cohesion. Second, it denies access to a full set 

of equal rights to community members and thwarts the egalitarian and inclusive 

potential of American democracy. Third, by declaring individuals to be morally 

corrupt, it rejects the role of redemption in a just system of laws. These 

undemocratic, unproductive, and unforgiving failures create a permanent secondclass 

population of legal residents without justification. 

A. Social Integration and Cohesion 

The United States accepts more immigrants each year, from all over the world, 

than any other country. 290 In 2009 alone, just under forty million individuals from 

190 different countries came to the United States. 291 This tremendous inflow of 

290. See Top Ten Countries With the Largest Number of International Migrants, 

MIGRATION POLICY INSTITUTE, http://www.migrationinformation.org/datahub/charts/6.1.sht 

ml. 

291. 2009 YEARBOOK OF IMMIGRATION STATISTICS, supra note 77, at tbl.26. Of that 

number, over 36 million were nonresident or short-term resident admissions, id. at tbl.25, 

approximately 650,000 people arrived as legal permanent residents, id. at tbl.1, and an 

estimated 300,000 crossed the border without permission. PEW HISPANIC CTR, U.S. 

UNAUTHORIZED IMMIGRATION FLOWS ARE DOWN SHARPLY SINCE MID-DECADE i (2010)


diverse people makes social cohesion a considerable challenge. 292 The challenge is 

made even more daunting in a globally connected society where swift travel and 

widely available communication technology make it easy for individuals to come 

and go and retain all sorts of ties to their nation of origin. 293 The challenge is not 

limited to integrating a steady flow of newcomers; it also requires promoting 

functioning communities that include a significant population of noncitizen 

residents. 294 Current debates about birthright citizenship, 295 Arizona’s Senate Bill 

1070, 296 and the DREAM Act 297 illustrate the considerable fracture between 

citizens and noncitizens. 

Many consider citizenship to be the finest form of societal integration, including 

state and federal governments, immigration advocates, and anti-immigration 

groups. 298 This cohesive function carries great importance in immigrant-receiving 

countries like the United States. As political scientist Robert Putnam has shown, 

successful immigrant societies foster social solidarity and dampen the negative 

effects of diversity by constructing more encompassing identities. 299 To accomplish 

this, he encourages identities that “enable previously separate ethnic groups to see 

themselves, in part, as members of a shared group with a shared identity.” 300 This 

increases what Putnam calls “social capital,” which he defines as “social networks 

and the associated norms of reciprocity and trustworthiness.” 301 Citizenship stands 

as just such a solidarity promoting shared identity. 

American citizenship has historically served as a tool of social cohesion from its 

inception following the creation of the republic. Today, to help meet the challenge 

(estimating annual inflow of unauthorized immigrants at 300,000 for 2007–2009, down from 

850,000 annually form 2000–2005). 

292. When I say social cohesion, I do not mean national unity. Instead, I mean 

cooperation amongst the members of the community in the economic, social, and cultural 

spheres that tends to increase trust and reduce isolation. 

293. Rodriguez, supra note 63, at 1116 (“[A] profusion of social science literature 

focused on the movement of people around the world is increasingly demonstrating that 

migrants have varied intentions and that much migration is best understood as cyclical or 

temporary.”). 

294. As of 2009, approximately twenty-two million foreign-born noncitizens resided in 

the United States, comprising almost 7% of the total U.S. population. CONG. BUDGET 

OFFICE, A DESCRIPTION OF THE IMMIGRANT POPULATION: AN UPDATE 1 (2011). 

295. Legislation recently proposed in the House and sponsored by almost 100 

representatives would attempt to amend the Fourteenth Amendment and deny U.S. 

citizenship to children born in the United States to illegal immigrant parents. See Birthright 

Citizenship Act of 2009, H.R. 1868, 111th Cong. (2009). 

296. United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), cert. granted 132 S. Ct. 845 

(2011). 

297. In 2010, the Development, Relief, and Education for Alien Minors (DREAM) Act 

was passed by the House, but was filibustered in the Senate and never came up for a vote. 

Elisha Barron, The Development, Relief, and Education for Alien Minors (Dream) Act, 48 

HARV. J. ON LEGIS. 623, 636 (2011). 

298. Baker-Bernstein, supra note 289, at 367–69. 

299. Robert D. Putnam, E Pluribus Unum: Diversity and Community in the Twenty First 

Century, 30 SCANDINAVIAN POL. STUD., 137, 137–139 (2007). 

300. Id. at 161. 

301. Id. at 137.


of social cohesion, the congressionally created Office of Citizenship promotes 

naturalization and includes in the federal budget spending for immigrant integration 

programs. 302 But as was shown in Part II, the current good moral character scheme 

denies citizenship to many lawful permanent residents. Rather than promote 

cohesion, an exclusionary membership policy with respect to individuals who 

permanently reside in the country and who participate daily in the community’s 

social and economic spheres serves only to subordinate and marginalize. 303 Indeed, 

the cost of such a policy is community cohesion. 304 

Denying citizenship to permanent residents prevents some immigrants from 

making a public choice about their membership or expressing their commitment to 

the state. Sociological studies suggest that exclusionary policies can result in a 

“boomerang” counter-assimilatory effect, causing immigrants who are excluded in 

some manner to increasingly perceive themselves as outsiders. 305 This leads to selfidentification 

by national origin or as a member of a pan-ethnicity rather than as an 

“American” or “hyphenated American.” 306 The failure of noncitizens to socially 

integrate then becomes a self-fulfilling prophecy. Their exclusion from 

membership produces a noninclusive identity and noninclusive behaviors. 307 

This marginalization can trickle down to the children of the excluded. As they 

see how their noncitizen parents are treated, they may resist identifying as 

American and resist fully integrating themselves into their community. 308 The 

authors of one study concluded that “the process of growing ethnic awareness 

among the children of immigrants . . . appear[ed] to be a function of their 

302. Although the initial FY 2011 budget passed by the House included a bar on 

spending for immigrant integration programs, see H.R. 1, 112th Cong. § 1635 (2011), that 

bar was not present in the final FY 2011 budget, H.R. 1473, 112th Cong. (2011). President 

Obama has requested nearly $20 million for immigrant integration programs in his 2012 

budget. See DEPT. OF HOMELAND SEC., FY 2012 BUDGET IN BRIEF 145 (2011), available at 

http://www.dhs.gov/xlibrary/assets/budget-bib-fy2012.pdf#page=1540. 

303. Of course, political inclusion does not guarantee social integration as even with 

citizenship, immigrants suffer subordination and marginalization. Without citizenship, 

though, the dynamics of that marginalization are certainly more oppressive. 

304. The Civil War can be seen as the climax of the tension that a racially exclusive 

citizenship regime created. 

305. See RUTH RUBIO-MARIN, IMMIGRATION AS A DEMOCRATIC CHALLENGE: CITIZENSHIP 

AND INCLUSION IN GERMANY AND THE UNITED STATES 117 (2000) (arguing that exclusion 

from citizenship contributes to social exclusion because the relegation of individuals to the 

economic sphere does not encourage civic virtues and facilitates exclusion from the political 

community); T. Alexander Aleinikoff & Ruben G. Rumbaut, Terms of Belonging: Are 

Models of Membership Self-Fulfilling Prophecies?, 13 GEO. IMMIGR. L.J. 1, 14 (1998). 

306. Aleinikoff & Rumbaut, supra note 305, at 14 (“Membership may be as much a state 

of mind—a definition of the situation—as a set of social facts.”). 

307. Id. 

308. Rodriguez, supra note 63, at 1121 (“A child’s integration and social success depend 

in part on the framework for belonging available to the child’s parents. The effects of the 

transnational lifestyle on the second generation are only now being studied, but it is safe to 

say that having parents whose presence in the United States is based on immigration as 

contract[, whose presence is not stable,] can be destabilizing . . . . The right to remain that 

citizenship provides is crucial for the migrant and those with whom he associates . . . .”).


experiences, expectations, and perceptions of racial and ethnic 

discrimination . . . and their response to societal messages that tell them that they 

are not, and may never become, full-fledged members.” 309 The fact that the great 

majority of the children who exhibited this effect were natural-born U.S. citizens 

illustrates the power of the exclusion. 310 

Preventing community residents from attaining full membership also encourages 

citizens to view those individuals as strangers and outsiders instead of potential 

cocitizens. This diminishes the regard for immigrants generally and exacerbates 

distrust between citizen and noncitizen community residents, 311 undermining social 

cohesion and a sense of shared enterprise. 312 Because permanent noncitizens are 

not a constituency, the voting public and elected officials need not become aware of 

or address their needs and concerns in the process of setting community norms and 

defining the public good. 313 When permanent residents have no realistic chance to 

unite their family in the United States, 314 when they face permanently reduced 

benefit and employment opportunities, 315 and when they are continually reminded, 

especially during election season, that their voice does not count, they tend not to 

integrate as fully as they would were they on the path to citizenship. 316 

Some argue that exclusionary citizenship practices, while contrary to the 

foundational liberal democratic ideals of equality and welcome, nevertheless have 

provided an important source of cohesion in American society. 317 That community 

cohesion justification falls away, however, when applied to the long-term residents 

at the center of this paper. Exclusion on character grounds can serve a cohesive 

309. See Aleinikoff & Rumbaut, supra note 305, at 19–20. Aleinikoff and Rumbaut 

“focus[ed] on relevant findings regarding linguistic assimilation and ethnic identification 

from the Children of Immigrants Longitudinal Study (“CILS”) . . . . The study, carried out in 

Southern California (San Diego) and South Florida (Miami and Fort Lauderdale), followed a 

large sample of over 5,200 youths from immigrant families representing seventy-seven 

different nationalities from the junior high school grades through the end of high school in 

the 1990s.” Id. at 11–12. 

310. See Aleinikoff & Rumbaut, supra note 305, at 15. 

311. Rodriguez, supra note 63, at 1121. 

312. Political scientist Robert Putnam famously calls this “social capital,” by which he 

means “social networks and the associated norms of reciprocity and trustworthiness.” 

Putnam, supra note 300, at 137. 

313. ALEINIKOFF, supra note 21, at 168 (“The concept of national membership is thus 

doubly exclusive. It designates nonmembers by defining members. It also recognizes an 

association that is expected to exercise power in the interests of members with less concern 

for the interests of nonmembers.”). 

314. Currently, wait times for visas for unmarried sons and daughters of citizens are over 

one year shorter than those for the unmarried sons and daughters of lawful permanent 

residents. See U.S. Dep’t of State, Visa Bulletin for April 2012, TRAVEL.STATE.GOV, 

http://www.travel.state.gov/visa/bulletin/bulletin_5674.html (showing that unmarried adult 

children of citizens wait an average of seven years and up to nineteen years for a visa, while 

unmarried adult children of legal permanent residents wait on average eight years and up to 

twenty years). 

315. See supra Part I.A. 

316. See Putnam, supra note 299. 

317. See, e.g., SMITH, supra note 20.


function when that exclusion keeps people physically out of the community. That 

is, refusing someone’s admission, physically segregating them (as in Indian 

reservations or World War II internment camps), or physically removing them from 

the country could promote social unity among those who remain. 

But excluding those like the Half Welcome, who had their removal waived by a 

judge and were granted lawful permanent resident status, and Kichul Lee, who was 

not deportable for his exuberant oyster picking, serves only to subordinate and 

marginalize. Recall that after being charged with removal for their crimes, the Half 

Welcome had a contested hearing before an immigration judge. 318 At the hearing, 

evidence of reform and community ties was tested by cross-examination and 

weighed against evidence regarding the nature, recency, and seriousness of the 

offense. For each member of this group, including the Cambodian refugee 

discussed above who the BIA concluded “is a person who would be an asset to our 

society,” 319 the applicant established not just her eligibility for relief, but that she 

merited the judge’s exercise of discretion in waiving removal. Nevertheless, the 

law declares them permanently unfit for membership. 

It is incoherent to decide that someone is a valuable and welcome part of the 

community and simultaneously proclaim that she cannot ever become a full 

member of the community. The waiver received by the Half Welcome is nothing 

other than a renewed admission to the community and provides a valid basis to 

presume that the immigrant currently possesses good moral character. Properly 

construed, the waiver is a membership decision. Since deportation is the “refusal by 

the Government to harbor persons whom it does not want,” 320 the government’s 

decision to waive that sanction indicates that it does want that person. If she lacked 

good character, or posed a threat to the safety of the community, the waiver would 

have been denied and the person deported. That the waiver results in a grant of 

lawful permanent resident status, and not a temporary status, reinforces the 

conclusion that the government accepts the immigrant by the waiver. At the least, it 

should restart the clock for the probationary precitizenship residency period, after 

which the individual may apply for citizenship. 

Because the Half Welcome, the wrongfully denied, and those chilled from 

applying for naturalization are not physically excluded from the United States, the 

character bar to citizenship does no protective work with respect to the 

community. 321 To the extent that supporters of the character bar are concerned 

about future crime and its threat to social cohesion, there is already in place a 

system to address law breaking: the criminal justice system. Criminal law and 

removal provisions, including relief from removal, address public-safety concerns 

with respect to noncitizens. Those who pose a serious threat are removed; those 

who do not, remain. If any person whose removal was waived commits future 

318. See McGann, supra note 257. 

319. In re H- N-, 221 I. & N. Dec. 1039, 1045 (B.I.A. 1999). 

320. Bugajewitz v. Adams, 228 U.S. 585, 591 (1913). 

321. See Spiro, supra note 13, at 513 (“A con man vexes the community with or without 

citizenship.”).


crimes, she would receive appropriate treatment, 322 including likely deportation. 323 

As a result, membership law need not do the work of public safety. 324 Instead, it 

should promote social cohesion by offering a path to full membership to all lawful 

permanent residents. 

B. Political Integration and Democracy 

Democratic theorists and the Supreme Court have frequently declared that the 

right to vote is “the essence of a democratic society” 325 that “makes all other 

political rights significant.” 326 Voting matters for many reasons. It is a means of 

expressing identity and influencing government policies; it is an inexpensive way 

of making a civic contribution; because each person’s vote counts the same as all 

the others, it is a symbol of equality; it gives voters a stake in the outcome and 

develops identification with the polity; it is evidence we live in a healthy 

democracy; and it confers legitimacy on the government and its policies. 327 

In the United States, access to the ballot has long signified full membership in 

the polity. When the propertyless African American, and other racial minorities, 

and women citizens secured the franchise, they transformed from subjects to 

members. 328 With each group of excluded residents welcomed to the voting fray, 

the United States moved closer to its founding promise of a robustly egalitarian 

democracy. While the United States has a long history of noncitizen voting, today it 

is all but extinct. 329 Immigrants who seek full political rights must naturalize. 

Because of the vote’s fundamental importance, any rule or practice that denies 

322. This argument was made as long ago as 1790 during debates about the first 

Naturalization Act’s moral character requirement. Those who felt it was not a necessary 

requirement for citizenship asserted that criminal laws would suffice “to restrain and regulate 

the conduct of an individual.” 1 ANNALS OF CONG. 115 (1790) (remarks of Rep. Lawrence 

(New York)), reprinted in 12 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF 

THE UNITED STATES OF AMERICA: DEBATES IN THE HOUSE OF REPRESENTATIVES: SECOND 

SESSION: JANUARY–MARCH 1790 148 (Helen E. Veit et al. eds., 1994). 

323. See 8 U.S.C. § 1229b(c)(6) (declaring ineligible anyone “whose removal has 

previously been canceled under this section or whose deportation was suspended under 

section 1254(a) of this title or who has been granted relief under section 1182(c)”). 

324. Spiro, supra note 13, at 516 (“[T]he character qualification may be surplusage when 

considered aside deportation provisions.”). 

325. Reynolds v. Sims, 377 U.S. 533, 555 (1964). 

326. FRANCES FOX PIVEN & RICHARD A. CLOWARD, WHY AMERICANS DON’T VOTE 3 

(1988). 

327. See JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON 

DISENFRANCHISEMENT AND AMERICAN DEMOCRACY 18–19 (2006). Additionally, voting may 

promote law-abiding behavior. Researchers are beginning to find a basic correlation between 

voting and crime—those who vote are less likely to be arrested and incarcerated, even 

among those with a criminal history. See id. at 131–35. 

328. See generally ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY 

OF DEMOCRACY IN THE UNITED STATES (rev. ed. 2009). 

329. See HAYDUK, supra note 60, at 15–40; Raskin, supra note 60, at 1460–61; Gerald M. 

Rosberg, Aliens and the Right to Vote, 75 MICH. L. REV. 1092, 1093–1100 (1977).


citizenship to permanent residents, and therefore denies them the franchise, 

deserves scrutiny. 

A major justification for the good character requirement relates to the political 

process. It derives from the Aristotelian idea that self-governance only works when 

it is done by the virtuous. 330 As Senator Mitch McConnell put it while discussing 

laws that disenfranchise felons, “states have a significant interest in reserving the 

vote for those who have abided by the social contract that forms the foundation of 

representative democracy . . . those who break our laws should not dilute the votes 

of law-abiding citizens.” 331 According to this view, denying citizenship to 

permanent residents with criminal histories protects the integrity of American 

democracy. 

The political process rationale has some initial plausibility. To the extent that 

democracy truly works only when not subverted by fraud or force, it makes sense 

to demand that newly chosen citizens have a demonstrated commitment to 

respecting the rules of society. American democracy, however, is not Aristotelian. 

The United States is decidedly not ruled by the virtuous, nor is political 

participation contingent on excellence. In fact, the Voting Rights Act prohibits 

rules which require voters to possess good moral character. 332 

Still, the government does limit the franchise based on criminal history. Today, 

every state but Maine and Vermont prohibit incarcerated felons from voting for 

some period of time. 333 Felon disenfranchisement seeks to exclude those with a 

criminal past from full community membership by preventing them from choosing 

leaders and setting policy. Senator McConnell’s remark quoted above captures the 

essential justification for disenfranchising felons. Supporters believe that restricting 

access to citizenship protects the ballot from supposed undesirables. 

A growing literature, however, demonstrates that felon disenfranchisement does 

not serve any of the purposes that supporters claim it to have, nor does it 

meaningfully promote any traditional penological aim. 334 Perhaps most 

330. ARISTOTLE, POLITICS 171 (Benjamin Jowett trans., Batoche Books 1999) (“A city 

can be virtuous only when the citizens who have a share in the government are 

virtuous . . . .”). 

331. MANZA & UGGEN, supra note 327, at 12 (citation omitted). 

332. 42 U.S.C. § 1973aa(b)(3); Shaw v. Reno, 509 U.S. 630, 639 (1993) (noting that 

“‘good character’ provisos were devised to deprive black voters of the franchise”). 

333. For a current list of voting sanctions by state, see Criminal Disenfranchisement 

Laws Across the Country, BRENNAN CTR. FOR JUSTICE, http://www.brennancenter.org/page/- 

/d/download_file_48642.pdf. See also Richardson v. Ramirez, 418 U.S. 24 (1974) (affirming 

the right of states to disenfranchise felons under the 14th Amendment). But see Farrakhan v. 

Gregoire, 590 F.3d 989 (2010) (holding that because Washington’s criminal justice system is 

so infected with racial bias, the automatic disenfranchisement of felons results in the denial 

of the right to vote on account of race in violation of § 2 of the Voting Rights Act), rev’d en 

banc, 623 F.3d 990 (9th Cir. 2010). Sociologists Jeff Manza and Christopher Uggen 

estimated that there were 5.3 million disenfranchised felons on Election Day in November, 

2004. MANZA & UGGEN, supra note 327, at 76. 

334. See MANZA & UGGEN, supra note 327. While felon disenfranchisement is not 

considered punishment, but is instead a collateral consequence of a criminal sentence, 

analyzing it under the four justifications for punishment highlights its lack of justification. 

The four classical justifications for punishment are retribution, deterrence, incapacitation and


importantly, disenfranchisement frustrates successful reentry by making 

participating in and contributing to society more difficult. 335 Numerous studies of 

disenfranchisement have documented the effect this has on the identity and 

behavior of the excluded. 336 In the words of one disenfranchised citizen, who could 

just as easily have been a permanent resident non-citizen, “[N]ot being able to vote 

kind of says you don’t matter, and you’re not really a part of this community. But 

then here I am, your next-door neighbor.” 337 Beyond affixing an outsider status, 

denying membership can also stigmatize the excluded. 338 As Frederick Douglass 

put it, “[b]y depriving us of suffrage, you affirm our incapacity to form an 

intelligent judgment regarding public measures . . . . [T]o rule us out is to make us 

an exception, to brand us with the stigma of inferiority . . . .” 339 

The good moral character bar to naturalization accomplishes the same as felon 

disenfranchisment: silencing the political voice of those who have committed 

crimes. Yet it suffers the same critique as felon disenfranchisement. Foreclosing 

access to full political rights frustrates social cohesion, and it does not sustain 

justification under any of the four classical justifications for punishment. A blanket 

bar to a good moral character finding based on a list of crimes that varies from the 

most serious to the petty is not proportional. 340 Since the consequence of criminal 

behavior by noncitizens is increasingly deportation, a collateral bar to citizenship 

cannot be said (and most certainly has not been proven) to provide any additional 

deterrence to crime. The bar does not manage risk because the people are not 

physically excluded but continue to live and work in the community. It does, 

however, frustrate rehabilitation by labeling these individuals as incorrigible 

outsiders. 

rehabilitation. Retribution (as opposed to vengeance) necessarily requires that the 

punishment be proportional to the crime, with minor crimes receiving lesser punishments. 

Given the wide variety of offenses that constitute a felony and trigger disenfranchisement, 

blanket disenfranchisement for all felons is not properly retributive because it is not 

proportional. Since the loss of liberty has failed to serve as a deterrent to those with felony 

convictions, it can hardly be asserted (and most certainly has not been proven) that stripping 

the right to vote serves as a measurable deterrent to crime. With respect to incapacitation, 

disenfranchisement does not prevent individuals from committing crimes unrelated to 

voting, which means it has no effect on almost all kinds of crime. 

335. See JEREMY TRAVIS, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF 

PRISONER REENTRY (2005). 

336. See, e.g., Christopher Uggen, Jeff Manza & Melissa Thompson, Citizenship, 

Democracy, and the Civic Reintegration of Criminal Offenders, 605 ANNALS AM. ACAD. 

POL. & SOC. SCI. 281 (2006) 

337. MANZA & UGGEN, supra note 327, at 163. 

338. A further danger of political alienation is that it transfers to the children of those 

who cannot naturalize since parents’ political behavior shapes that of their children. IRENE 

BLOEMRAAD, BECOMING A CITIZEN 5, 241 (2006). 

339. Frederick Douglass, What the Black Man Wants, in FREDERICK DOUGLASS, THE LIFE 

AND WRITINGS OF FREDERICK DOUGLASS 159 (Philip S. Foner ed.,1975). 

340. See Juliet Stumpf, Fitting Punishment, 66 WASH. & LEE L. REV. 1683 (2009) 

(arguing for proportionate sanctions for immigration violations); Michael Wishnie, 

Proportionality: The Struggle for Balance in U.S. Immigration Policy, 72 PITT. L. REV. 431 

(2011) (outlining an “ethic of proportionality” in immigration law).


To the extent that the opponents of a path to citizenship for those with criminal 

convictions assert that a concern for the integrity of the political process justifies 

permanent exclusion from the citizenry, those concerns are already addressed in 

several ways. For those whom I call the Half Welcome, a judge has concluded that 

they are rehabilitated and pose no threat to the community, and that they have 

significant ties within and to the United States. Their permanent political exclusion 

cannot be justified on character grounds after the waiver grant. In fact, to the extent 

that felon disenfranchisement laws operate, they serve the function of protecting the 

political process. 341 As is the case with public safety, naturalization law need not do 

that work. 

Besides serving no productive or legitimate aim, using the character requirement 

to deny citizenship to permanent residents violates the consent principle of 

democracy. 342 It forecloses the ability of residents to fully and equally participate in 

the political arena. 343 While there are limits on the consent principle, 344 policy 

decisions are deformed when those who are governed cannot assert and protect 

their interests. Those without the possibility of future membership “experience the 

state as a pervasive and frightening power that shapes their lives and regulates their 

every move—and never asks for their opinion.” 345 Indeed, the lack of the franchise 

is the very reason that the Supreme Court considers noncitizens a “‘discrete and 

insular’ minority” deserving of heightened judicial protection. 346 The recent surge 

in anti-immigrant legislation demonstrates the relative ease of discriminating 

against noncitizens (at least until courts intervene). 347 Assuring a path to 

membership for all lawful permanent residents would make it more difficult to 

enact and sustain unequal or derogatory treatment. 

The good moral character bar does more than deny certain lawful permanent 

residents the opportunity to exercise the most powerful political right. Permanently 

barring them from naturalization forecloses other opportunities for civic 

engagement. An example from Lewiston, Maine illustrates this point. In 2001, 

Somali refugees that the U.S. government had resettled in urban areas across the 

341. Spiro, supra note 13, at 516 (“[T]here are mechanisms other than naturalization 

laws, applied within the citizenry, for preventing the putative harm posed by ex-convicts 

participating in the political system.”). 

342. The consent principle of democracy holds that government derives its legitimacy 

over its subjects through their consent. See THE DECLARATION OF INDEPENDENCE para. 2 

(U.S. 1776) (“Governments are instituted among Men, deriving their just Powers from the 

Consent of the Governed.”). 

343. RUBIO-MARIN, supra note 306, at 2 (calling the exclusion of long-term residents 

from political participation a “democratic legitimacy gap”). 

344. The lack of a vote is less problematic for temporary visitors (since they do not 

clearly have a long-run interest in the polity) and those who are on a path to citizenship 

(since they can be voters soon enough). 

345. MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 

59 (1983). Walzer made this point while talking about guestworkers, but it applies equally, if 

not more forcefully, to permanent residents. 

346. See Graham v. Richardson, 403 U.S. 365, 372 (1971) (citation omitted). 

347. Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power over 

Immigration, 86 N.C. L. REV. 1557, 1594–60 (2008).


country decided to collectively resettle in the small town. 348 By 2007 some 3,000 

Somalis had come to Lewiston, comprising approximately 10%of the city’s 

population. 349 

In May 2007, Lewiston Mayor Laurent Gilbert and several members of the 

town’s City Council sought to change the membership requirement for 

participation on the Downtown Neighborhood Task Force from “registered voter” 

to “resident” of Lewiston. 350 Supporters explained that it would allow for “a larger 

cross section of folks to serve on the committee” and noted the hypocrisy of city 

officials who publicly stated that new immigrants should get more involved in 

community affairs while denying them a voice on the Task Force by limiting its 

membership to citizens. 351 Given the significant Somali population in Lewiston, 

Mayor Gilbert felt it important to have a Somali on the Task Force and supported 

the change. 352 He advocated for the appointment of Ismail Ahmed, a six-year legal 

resident who was in the process of gaining U.S. citizenship. 353 Several opposed the 

mayor’s proposal. 354 One resident, perhaps unaware that noncitizens cannot vote in 

any Maine election, declared that immigrants should care enough to be registered 

voters if they sought to get involved in community affairs. 355 The proposal 

failed. 356 Despite his willingness and desire to participate in local affairs, Ismail 

Ahmed’s lack of citizenship prevented his full civic engagement. 357 

As with social cohesion, the political process rationale does not provide a 

convincing justification for the good moral character bar to naturalization. Using 

criminal records as a proxy for virtue and a character test as a precondition for 

348. Lauren Gilbert, Citizenship, Civic Virtue, and Immigrant Integration: The Enduring 

Power of Community-Based Norms, 27 YALE L. & POL’Y REV. 335, 361 (2009). 

349. Id. 

350. Amendment to Order Establishing the Downtown Neighborhood Task Force 

Regarding the Number of Members on the Task Force Before the City of Lewiston City 

Council (Me. 2007) (motion by Councilor Jean) [hereinafter Lewiston City Council Meeting 

Minutes], available at http://www.ci.lewiston.me.us/archives/73/CC-Mins-05-15-2007.pdf; 

see also Gilbert, supra note 348, at 370. 

351. Lewiston City Council Meeting Minutes, supra note 350, at 5. Because noncitizens 

cannot vote in any election in Maine, ME. CONST. art. II, § 1 (defining electors as “citizen[s] 

of the United States of the age of 18 years and upwards”), the requirement that members be 

registered voters precluded any noncitizen resident of Lewiston from serving on the Task 

Force. 

352. Gilbert, supra note 348, at 370. 

353. Id.; Lewiston City Council Meeting Minutes, supra note 350, at 5. 

354. Lewiston City Council Meeting Minutes, supra note 350, at 5. 

355. Id. 

356. See id. 

357. A critic could suggest that those barred from citizenship always have the option of 

returning to their home country should they desire to live in a place where they have full 

political rights. In truth, leaving is often only a formal option. Legal permanent residents 

remain in the United States not only because it is their preference and right to do so, but also 

because of the strong family and economic ties they have established in this country and the 

hardship that leaving would bring for their citizen and legal resident relatives. For some, 

such as asylees, refugees, and those who came to the United States as children, the formality 

of such a choice is greatly magnified.


access to the franchise does not promote or protect democracy. This is especially so 

when the blunt instrument of immigration law’s “aggravated felony” provision 

does the decisive work. 358 To the contrary, excluding a portion of permanent 

residents from full political rights diminishes democracy. 

C. Redemption 

In his 2004 State of the Union address, President Bush declared America to be 

“the land of second chance” and urged that a criminal past should not restrict the 

opportunities for any individual after she has completed her sentence. 359 The 

principle of redemption—that an individual can be released from bearing the mark 

of past misdeeds—has long played a role in the American legal system. Bankruptcy 

law and executive pardons, around since the founding, reflect a tradition of 

forgiving offenses or debts. 360 The prominence of redemption in the law arguably 

peaked during the rehabilitative-focused “penal welfare” reform efforts of the midtwentieth 

century, which preached rehabilitative interventions over retributive 

punishments. 361 At no other time did American policy demonstrate such a 

commitment to the idea that a criminal act did not define the character of the person 

who committed it. 

Since the 1950s, however, America has largely turned away from redemption, 

replacing it with an increasing emphasis on punishment and condemnation. As 

David Garland and others have shown, retributive punishment is marked by 

“reactive sanctioning of criminal individuals” that prefers uniform penalties that are 

mechanically dispensed. 362 Although individuals view themselves as capable of 

change, they see people with criminal histories as having “immutabl[y] and 

essential[ly] flawed natures.” 363 The new, but now ubiquitous, sex offender 

358. Danger to public safety or threat to the public order are not established merely by 

the fact of a criminal record. Desistance literature tells us that the type of crime, time since 

crime, and circumstances since crime matter a lot to assessing the risk of reoffending. See 

infra notes 385–87. 

359. President George W. Bush, State of the Union Speech (Jan. 20, 2004) (transcript 

available at U.S. Government Printing Office). The Second Chance Act of 2007, Pub. L. No. 

110-199, 122 Stat. 657 (2008). 

360. Article I authorizes Congress to enact “uniform Laws on the subject of Bankruptcies 

throughout the United States.” U.S. CONST. art. 1, § 8, cl. 4. American courts since colonial 

times have nullified or reduced debts as a reward for the debtor's cooperation in trying to 

reduce them. Article II states that the President “shall have Power to Grant Reprieves and 

Pardons for Offenses against the United States, except in Cases of Impeachment.” U.S. 

CONST. art. II, § 2, cl. 1. Between 1932 and 1980, for example, several hundred pardons or 

commutations were routinely granted each year by the President. Margaret Colgate Love, Of 

Pardons, Politics and Collar Buttons: Reflections on the President's Duty to be Merciful, 27 

FORDHAM URB. L.J. 1483, 1488, 1491 (2000). The percentage of pardon petitions acted on 

favorably approached or exceeded 30% in every administration from Franklin Roosevelt's to 

Jimmy Carter's. Id. at 1492. 

361. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN 

CONTEMPORARY SOCIETY 34 (2001). 

362. Id. at 39–40. 

363. SHADD MARUNA, MAKING GOOD: HOW EX-CONVICTS REFORM AND REBUILD THEIR


registries, the near extinction of the pardon, and the continued mass incarceration 

despite falling crime rates exemplify the prevailing preference for punitive 

justice. 364 

As with any other institution or regime, citizenship rules reflect the trends and 

values of the society that enact them. Not surprisingly, then, the story of 

redemption in immigration law looks much the same. As discussed in Part I, the 

touchstone of the good moral character inquiry for naturalization applicants was 

long the person’s present good moral character. The Attorney General declared in 

1943 that the “‘American sense of justice and fair play’ [should] 

‘respect . . . rehabilitation and not . . . brand and treat [the noncitizen] as a criminal 

perpetually.’” 365 The emergence of relief from removal reflected the belief that, 

despite noncitizens’ past transgressions, they can still be an integral and integrated 

part of American society. Similarly, until 1990, a criminal judge could make a 

binding judicial recommendation against deportation (JRAD), based on the 

immigrant’s ties to the United States and unlikelihood of recidivism, that precluded 

deportation based on a criminal conviction. 366 

In the last few decades, however, punitive justice notions have infected 

immigration law. 367 The elimination of the JRAD in 1990, and the strident 

opposition to anything that resembles an amnesty for undocumented immigrants, 

reflects the popularity of a punitive view toward noncitizens who violate the law. 

The 1996 federal legislation discussed above, 368 and subsequent laws that further 

increased the immigration consequences of criminal behavior and made those 

consequences much more likely, 369 also demonstrate the turn to a more punitive, 

and increasingly draconian, scheme. By concomitantly decreasing opportunities for 

relief and individual review, and extending those consequences into the citizenship 

realm through the “aggravated felony” good moral character bar, these changes 

have entrenched retribution in immigration law. 

Recent U.S. Supreme Court cases and criminological research suggests a turning 

tide, outlining the appropriateness and necessity of a redemptive legal framework. 

In a pair of recent cases involving juveniles, the Supreme Court has made it clear 

LIVES 4 (2001). 

364. Bela August Walker, Deciphering Risk: Sex Offenders and Moral Panic in a Risk 

Society, 40 U. BALT. L. REV. 183, 191–95 (2010); Office of the Pardon Att’y, Presidential 

Clemency Actions by Administration: 1945 to Present, U.S. DEP’T OF JUSTICE, 

http://www.justice.gov/pardon/actions_administration.htm (showing President George W. 

Bush granted only 189 pardons in eight years, and President Obama has only granted nine in 

his first twenty-four months of office). 

365. MAE M. NGAI, IMPOSSIBLE SUBJECTS, ILLEGAL ALIENS AND THE MAKING OF MODERN 

AMERICA 86 (2004) (citing Memorandum, Attorney General to Sen. Rufus C. Holman, Jan. 

4, 1943, file 55819/402D, INS) (regarding waivers of deportation for those with criminal 

convictions). 

366. 8 U.S.C. § 1251(b)(2) (1988) (repealed by Immigration Act of 1990, Pub. L. No. 

101-649, § 505, 104 Stat. 4978, 5050). 

367. See Juliet Stumpf, The Crimmigration Crisis: Immigration, Crime, and Sovereign 

Power, 56 AM. U. L. REV. 367 (2006). 

368. See supra Part I.A. 

369. See, e.g., Uniting and Strengthening America by Providing Appropriate Tools 

Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act), Pub. L. No. 56, 

§ 411, 115 Stat. 272, 345–50 (adding terrorism grounds for removal).


that the Constitution does not allow us to permanently give up on people who 

commit crimes at a young age. In Roper v. Simmons, the Court held 

unconstitutional the imposition of capital punishment for crimes committed by 

someone under the age of eighteen. 370 As compared to adults, the Court found that 

juveniles have a “lack of maturity and an underdeveloped sense of responsibility” 

and their characters are “not as well formed.” 371 This made it difficult for expert 

psychologists to “differentiate between the juvenile offender whose crime reflects 

unfortunate yet transient immaturity, and the rare juvenile offender whose crime 

reflects irreparable corruption.” 372 Because juveniles are more capable of change 

than are adults, and their actions less likely to be evidence of “irretrievably 

depraved character[,]” the Court found it more likely that any character deficiencies 

evidenced by crime will be reformed. 373 

Drawing on its reasoning in Roper, the Supreme Court outlawed life without 

parole sentences for individuals who committed crimes other than homicide under 

the age of eighteen in Graham v. Florida. 374 As the Court explained, life without 

parole “means denial of hope; it means that good behavior and character 

improvement are immaterial; it means that whatever the future might hold in store 

for the mind and spirit of [the convict], he will remain in prison for the rest of his 

days.” 375 In short, it “requires the sentencer to make a judgment that the juvenile is 

incorrigible.” 376 Finding incorrigibility to be “inconsistent with youth,” the Court 

again outlawed a penalty that “forswears altogether the rehabilitative ideal . . . [and] 

makes an irrevocable judgment about that person’s value and place in society.” 377 

The Court held that individuals must be given an opportunity to show, at some 

point in the future, that they have matured enough while in prison that they are fit 

to rejoin society. 

In Roper and Graham, the Supreme Court disallowed conclusive character 

judgments based on an act committed while young. Because the “aggravated 

felony” bar to a good moral character finding does not take age at offense into 

consideration, Roper and Graham cast doubt on the legitimacy of a permanent 

character bar for those who committed crimes under the age of eighteen. That 

some noncitizens who committed crimes before they turned eighteen first arrived in 

the United States when they were much younger only reinforces the point. 378 The 

permanent character bar is also suspect because it denies immigrants with a 

criminal past a chance to demonstrate their reform and current fitness for full 

370. 543 U.S. 551 (2005). 

371. Id. at 569–70 (citations omitted). 

372. Id. at 573 (citation omitted). 

373. Id. at 570. 

374. 130 S. Ct. 2011 (2010). 

375. Id. at 2027 (quoting Naovarath v. State, 779 P.2d 944 (Nev. 1989)). 

376. Id. at 2029. 

377. Id. at 2029–30 (quoting Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky. 

1968)); see also People v. Miller, 781 N.E.2d 300, 309 (Ill. 2002) (holding mandatory life 

sentence for 15-year-old defendant unconstitutional given that “young defendants have 

greater rehabilitative potential”). 

378. For these immigrants, their socialization occurred in the United States, which 

undermines the legitimacy of deporting them to a foreign land for crimes committed here.


membership. As New York’s Governor Paterson declared, and President Bush 

implied, 379 inflexible laws that do not credit rehabilitation are “adverse to the 

values that our country represents.” 380 

It is not just Supreme Court holdings rejecting fixed character judgments that 

support a place for redemption in membership law. Criminological and sociological 

findings regarding reentry and recidivism demonstrate the necessity and 

appropriateness of a redemptive scheme. It is undisputed that most recidivism 

occurs within three years of release, and most offenders die or desist from crime by 

age seventy. 381 In fact, over 80% of people stop committing crimes by the age of 

twenty-eight. 382 Many criminologists argue that this “age-crime curve” has been 

“virtually unchanged for about 150 years.” 383 The evidence of desistance at 

relatively early ages rebuts the notion that criminal deviance is something 

permanent. Instead, it is most often short lived. The data strongly militate against 

life-long sanctions for criminal behavior and call for policies that allow for and 

recognize reform. 

More recent research adds nuance and strength to these findings. Working from 

the premise that recidivism declines steadily with time, researchers have sought to 

compare the risks of rearrest for those with a prior contact with the criminal justice 

system to the risk of arrest for two cohorts: (1) all same-aged individuals from the 

general population and (2) same-aged individuals with a clean criminal record. 

They have sought to identify empirically a point in time when a person with a 

criminal record, who remained free of further contact with the criminal justice 

system, has no measurably greater risk of rearrest than either of the two cohorts. 384 

Employing a statistical concept called the “hazard rate”, these studies have 

379. See supra note 359. 

380. Press Release, New York State Office of the Governor, Governor Paterson 

Announces Pardons (Dec. 6, 2010). 

381. JOHN H. LAUB & ROBERT J. SAMPSON, SHARED BEGINNINGS, DIVERGENT LIVES: 

DELINQUENT BOYS TO AGE 70 (2003); Shawn D. Bushway & Gary Sweeten, Abolish Lifetime 

Bans for Ex-Felons, 6 CRIMINOLOGY & PUB. POL’Y 697, 699–70 (2007). 

382. TONY WARD & SHADD MARUNA, REHABILITATION 13 (2007). 

383. MICHAEL GOTTFREDSON & TRAVIS HIRSCHI, A GENERAL THEORY OF CRIME 124 

(1990). 

384. See, e.g., Alfred Blumstein & Kiminori Nakamura, Redemption in the Presence of 

Widespread Criminal Background Checks, 47 CRIMINOLOGY 327 (2009) (studying 

individuals arrested in New York state for the first time as adults in 1980 at age sixteen, 

eighteen, and twenty); Bushway & Sweeten, supra note 381; Megan Kurlychek, Robert 

Brame & Shawn D. Bushway, Enduring Risk? Old Criminal Records and Predictions of 

Future Criminal Involvement, 53 CRIME & DELINQUENCY 64 (2007) (studying police contact 

data from the 1942 Racine, WI birth cohort study) [hereinafter Kurlychek et al., Enduring 

Risk]; Megan Kurlychek, Robert Brame & Shawn D. Bushway, Scarlet Letters and 

Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 CRIMINOLOGY & 

PUB. POL’Y 1101 (2006) [hereinafter Kurlychek et al., Scarlet Letters and Recidivism] 

(studying data for males born in Philadelphia in 1958 and who resided in the city between 

the ages of ten and seventeen, followed until they turned twenty-six); Keith Soothill & Brian 

Francis, When do Ex-Offenders Become Like Non-Offenders?, 48 HOW. J. OF CRIM. JUST. 373 

(2009) (studying conviction records from England in Wales for those born in 1953 and 

1958).


consistently found that individuals with a prior contact who stay arrest-free for 

seven years or more pose very little risk of future crime. 385 Moreover, that low risk 

converges with the risk of a same-aged individual from the general population at 

around seven years after contact, and approaches (though never equals) that of 

same-aged individuals with a clean criminal record. 386 These researchers have 

concluded from these findings that lifetime bans for ex-felons linked to prior 

crimes, such as those related to employment eligibility, are not consistent with the 

data on desistance and cannot be justified on the basis of safety or concerns about 

crime risk. 387 Instead, they assert that where such bars exist, the laws should 

include sunset clauses for individuals who stay straight for a certain period of 

time. 388 

The permanent good moral character bar that makes naturalization impossible 

for some immigrants is precisely the kind of lifetime bar that this data challenges. 

Because a person’s criminal record empirically becomes stale enough that it largely 

ceases to provide any useful information relevant to assessing risk (presuming she 

avoids further contact with the criminal justice system), naturalization law should 

not impose lifetime bars to membership based on prior criminal behavior. Not only 

is the presumption behind the bar not borne out, the badge the bar imposes may 

contribute to a sense of hopelessness and frustrate reform. 389 In contrast, a policy 

that offered redemptive citizenship could provide additional incentive for 

immigrants to adopt prosocial, integrative attitudes. 

A just naturalization scheme cannot reject redemption. Not only does a punitive 

framework cause the negative consequences outlined above, it refuses the positive 

385. The hazard rate is defined as the probability per time unit that a case that has 

survived to the beginning of the respective interval will fail in that interval. See, e.g., 

Blumstein & Nakamura, supra note 384. 

386. See id. at 338–44 (finding that after four to nine years, a person with a single prior 

record of aggravated assault, burglary, or robbery, who subsequently stayed clean has the 

same risk of reoffending as members of the general population of the same age, and the risk 

compared to those who had never been arrested becomes close enough to be largely 

irrelevant after anywhere between seven and twenty-five years, depending on the risk 

tolerance one is willing to accept); Soothill & Francis, supra note 384, at 373 (finding that 

after a ten-year conviction-free period, prior contact is no longer informative for future 

criminality and the risk of reconviction of those with a finding of guilt as a juvenile or before 

age twenty-one converges with non-offenders between the ages of thirty and thirty-five, or 

approximately ten to fifteen years after the initial conviction); Kurlychek et al., Enduring 

Risk, supra note 384, at 80 (“[I]f a person with a criminal record remains crime free for a 

period of about 7 years, his or her risk of a new offense is similar to that of a person without 

any criminal record.”); Kurlychek et al., Scarlet Letters and Recidivism, supra note 384, at 

1117 (after five to seven years of law-abiding conduct, “the risk of a new criminal event 

among a population of nonoffenders and a population of prior offenders becomes similar”). 

387. Bushway & Sweeten, supra note 381, at 702 (urging sunset clauses after seven to 

ten years of no criminal justice contact). 

388. Id. 

389. Gabriel J. Chin, Race, The War on Drugs, and the Collateral Consequences of 

Criminal Conviction, 6 J. GENDER, RACE & JUST. 253, 254 (2002) (describing how collateral 

consequences impact employment and frustrate the ability “to lead law-abiding lives, to 

complete probation, or to avoid recidivism”).


effects of a legal regime that recognizes individuality and change. As numerous 

scholars have shown, the possibility of redemption can be a powerful incentive for 

individuals to expend the effort needed to achieve rehabilitation. 390 If America is to 

be the land of second chance, 391 it must not be so only for citizens. It should restore 

a meaningful place for redemption in membership law. To promote a robust, 

egalitarian democracy and to foster a cohesive community, that second chance must 

offer the opportunity of citizenship to all permanent residents, even those with a 

criminal past. 

A path to citizenship for all permanent residents encourages their investment in 

the community while discouraging citizens from marginalizing future fellow 

citizens. While naturalization is not an end point in the process of integration into 

the American community, it provides an individual with important rights, such as 

the vote and security against deportation, that make full participation possible. 

Indeed, full, secure social integration is impossible without citizenship. When we 

deny legal permanent residents a path to citizenship, we “limit[] the potential of 

U.S. citizenship to be a viable context for a sense of belonging, and for 

participat[ing] in civic, political, social, and economic life that is inclusive and 

ultimately respectful of all individuals.” 392 In a liberal democracy, no permanent 

residents should be relegated indefinitely to second-class status. To better meet the 

challenge of a pluralistic, globally-connected populace, our naturalization laws 

must allow and encourage all legal permanent residents the opportunity to become 

full members. 

IV. REFORMS 

According to Professor Hiroshi Motomura, the long-standing view of 

immigration in America was one that saw immigrants as potential future citizens. 393 

This approach promoted a participatory democracy and incentivized social 

cohesion by encouraging immigrants to commit to, and participate in, their 

community. It simultaneously encouraged the citizenry to view these residents as 

future members. While modifications today are necessary to incorporate the variety 

of temporary stays permitted by limited-duration visas, there is no compelling 

reason to treat lawful permanent residents as anything but potential American 

citizens. Some may choose not to pursue citizenship, but the primary purpose of the 

status is as a path to citizenship. When permanent residents are denied the 

opportunity to naturalize, they are less likely to identify with America and fully 

invest in its economic, social, political, and cultural arenas. 

This Part proposes two complimentary solutions to the problematic practice of 

denying an opportunity for full membership to those with a criminal past. First, it 

390. See, e.g., Bruce J. Winick, A Therapeutic Jurisprudence Analysis of Sex Offender 

Registration and Community Notification Laws, in PROTECTING SOCIETY FROM SEXUALLY 

DANGEROUS OFFENDERS: LAW, JUSTICE, AND THERAPY 213, 219 (Bruce J. Winick & John Q. 

La Fond, eds., 2003). 

391. See supra note 359 and accompanying text. 

392. MOTOMURA, supra note 31, at 166. 

393. MOTOMURA, supra note 31. The long history of racial barriers to citizenship cannot 

be ignored, and undermines this description in important ways.


urges Congress to eliminate the good moral character requirement entirely, or 

restrict the good moral character bar triggered by criminal conduct. Should a 

character requirement be kept, it recommends changes that USCIS should 

implement to realign the Agency’s actions with its mission and to assure fair and 

lawful character assessments. 

A. Reform the INA: Eliminate or Restrict the Good Moral Character Requirement 

Administrative law scholars and those who write about immigration and 

naturalization frequently criticize the way that immigration bureaucrats exercise the 

considerable discretion afforded to them. 394 Given the way that USCIS is 

approaching good moral character decisions, the best way to ensure fairness might 

be to limit agency discretion. This can be most readily accomplished in two ways: 

(1) by eliminating the good moral character requirement entirely; or (2) by 

imposing a bright line rule stating that certain crimes denote a lack of good moral 

character. 

First and foremost, a person’s character should have no bearing on their 

membership in their political community of residence. While most scholars and 

theorists have long accepted that naturalization is a democratic process for 

determining membership, and that the distribution of membership is a political 

matter of which the state has sovereign power, 395 there is an emerging literature, of 

which my Article is a part, discussing a right of access to membership. 396 Under 

this rights-based norm, what matters for membership in the political community of 

residence is residence in the political community. Anything else—such as civic 

knowledge or language ability—should not bar membership to someone who has 

established (and been granted) permanent residence in the political community. 

This right of access norm can be seen emerging, for example, as racial, ethnic, and 

gender barriers to citizenship are coming under increasing stress, and as states relax 

their rules against dual nationality. 397 

A second reason to eliminate the good moral character requirement is that it is 

superfluous. As Part III showed, the character requirement is superfluous because 

of strict deportation provisions, limited relief granted only to those few who 

394. See Gonzales-Gomez v. Achim, 441 F.3d 532, 535 (7th Cir. 2006) (remarking that 

“[t]he only consistency that we can see in the government’s treatment of the meaning of 

‘aggravated felony’ is that the alien always loses”); HIROSHI MOTOMURA, IMMIGRATION 

POLICY CTR., PROSECUTORIAL DISCRETION IN CONTEXT: HOW DISCRETION IS EXERCISED 

THROUGHOUT OUR IMMIGRATION SYSTEM (2012); Daniel Kanstroom, Surrounding the Hole 

in the Doughnut: Discretion and Deference in U.S. Immigration Law, 71 TUL. L. REV. 703 

(1997). 

395. WALZER, supra note 345, at 52. 

396. See Peter J. Spiro, A New International Law of Citizenship, 105 AM. J. INT'L L. 694, 

717 (2011) (describing the introduction of international rights norms into membership laws 

of individual nation-states); JOSEPH H. CARENS, IMMIGRANTS AND THE RIGHT TO STAY 6 

(2010) (arguing that residence over time produces a social membership that can trump legal 

status and justify and require regularization); SEYLA BENHABIB, THE RIGHTS OF OTHERS: 

ALIENS, RESIDENTS AND CITIZENS (2004). 

397. See Spiro, supra note 396, at 717, 733.


demonstrate reform and community ties, and widespread felon disenfranchisement. 

Its elimination from naturalization law, therefore, would not impact any of the 

goals of keeping the public safe or protecting the integrity of American democracy. 

Furthermore, eliminating the character requirement would also avoid the 

problematic and largely unreviewable exercise of discretion by agency bureaucrats, 

as exemplified by Kichul Lee and the hundreds of individuals who joined him as 

plaintiffs in a class action suit against USCIS regarding discretionary 

character-based denials. 398 

An additional reason to eliminate the good moral character requirement for 

citizenship is that a character inquiry itself is problematic, if not folly. 399 Character 

does not admit of an easy definition. It is something internal which cannot be 

observed or verified. Determining character necessarily requires an assessment of 

imperfect stand-ins, such as behavior and reputation, but these alone or together do 

not amount to character. 400 

As Chief Judge Learned Hand described the judge’s task, 

We must own that the statute imposes upon courts a task impossible of 

assured execution; people differ as much about moral conduct as they 

do about beauty . . . . Left at large as we are, without means of 

verifying our conclusion, . . . the outcome must needs be tentative; and 

not much is gained by discussion. 401 

In another character case, Judge Hand confessed that the decision was made by 

“resort to our own conjecture, fallible as we recognize it to be.” 402 Professor Martin 

Shapiro observed that “more than anything else[, Judge Hand’s] opinions seem to 

be pleas to Congress to get him out of the morals business.” 403 

The aggravated felony bar could be said to be an answer to that plea. It functions 

as a bright-line rule that constrains agency discretion. But Congress has imposed 

too bright a line. The fact that conduct as varied as murder, drug possession, 

writing a bad check, and misdemeanor shoplifting can come under the definition of 

“aggravated felony,” and thus equally and permanently bar someone from 

demonstrating good character, speaks to the senselessness of the current 

398. See Portillo-Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011) (declining to 

review good moral character determination in the context of relief from removal because it 

“is a discretionary call and thus is not subject to judicial review”); supra text accompanying 

notes 257–65. 

399. See Price v. INS, 962 F.2d 836, 845 (9th Cir. 1991) (Noonan, J., dissenting) 

(“Beyond excluding persons committed to subversion or terror or under the orders of a 

foreign government, there is no conceivable way that the government can measure a person’s 

character.”). 

400. While the statute used to require that the applicant behaved as “a person of good 

moral character,” Act of June 29, 1906, ch. 3592, 34 Stat. 596, 597, it has since 1940 

required that the applicant “has been and still is a person of good moral character.” 8 U.S.C. 

§ 1427(a) (2006). 

401. Shapiro, supra note 105, at 917 (quoting Johnson v. United States, 186 F.2d 588, 

589 (2d Cir. 1951) and Repouille v. United States, 165 F.2d 152, 153 (2d Cir. 1947)). 

402. Schmidt v. United States, 177 F.2d 450, 451 (2d Cir. 1949). 

403. Shapiro, supra note 105, at 917.


framework. The “aggravated felony” bar to a good moral character finding captures 

too many crimes which do not indicate a lack of character, and it endures too long 

even for more serious crimes. Moreover, some crimes that trigger a character bar 

reflect the grim economic circumstances or immaturity of the individual more than 

they indicate an irretrievably depraved character, but decision makers are not free 

to consider such factors where the statutory bar applies. 404 

Even when the character decision is constrained by bright-line rules, 

legislatively judging the character of others and discerning their worthiness cannot 

be anything but arbitrary and capricious. It substitutes a behavior determination for 

a character assessment, 405 and ignores the variety of factors that surround any 

single act—such as environment and intention, reformation and repentance—that 

speak to the character of the actor. For discretionary good moral character 

assessments, now conducted by low-level bureaucratic staffers who are not 

required to be lawyers, 406 psychiatrists, or counselors, much less divine beings, the 

determination is little more than wild guessing. It certainly is not informed by 

psychological training or knowledge of desistance data. 

Assuming that there is some value and legitimacy to a moral character 

requirement and some truth to its presumptions (that we can comfortably assess a 

person’s character or predict a person’s future behavior), and presuming the good 

moral character requirement’s survival, 407 the INA should nevertheless allow 

permanent residents with a criminal past the opportunity to demonstrate their 

current fitness for full membership. 408 In the “land of the second chance,” a 

criminal conviction should not be a permanent bar to a good character finding. 409 

The reasons have already been discussed above: the Supreme Court has rejected 

fixed character judgments based on youthful crime and desistance studies 

demonstrate that past criminal history becomes insignificant as a predictor of future 

404. See WILLIAM J. WILSON, WHEN WORK DISAPPEARS: THE WORLD OF THE NEW URBAN 

POOR (1996) (arguing that inner city crime is, in part, a result of the disappearance of 

blue-collar jobs); Sharon Dolovich, Legitimate Punishment in Liberal Democracy, 7 BUFF. 

CRIM L. REV. 307, 371–72 (2004) (discussing morally arbitrary factors such as being raised 

in a family in which physical and psychological abuse were commonplace, or being raised in 

a very poor family in a poor neighborhood, that can lead to the commission of crime). 

405. See Newton, supra note 12, at 68 (“Any approach which attempts to preserve the 

ordinary meaning of ‘moral character,’ yet can deal only with acts and conduct, is doomed to 

failure.”). 

406. See H.R. REP. NO. 99-905, at 3 (1986) (noting that 1983 agency reforms allowed 

nonlawyers to review naturalization petitions). 

407. I admit that eliminating the good moral character requirement in today’s political 

climate is unlikely. 

408. I concede that a Congress that proposed six years ago to eliminate district court 

review of USCIS good moral character decisions is not likely to embrace its elimination. See 

Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, H.R. 4437, 

109th Cong. § 609 (2d Sess. 2005). 

409. Some may wish to retain a permanent bar for those convicted of serious crimes such 

as homicide and violent sex offenses, or those with multiple serious convictions. The 

unlikelihood that anyone so convicted would avoid deportation if released from prison 

significantly minimizes the necessity for such an exception. Moreover, there is no data from 

which to conclude that all serious violent offenders are incapable of rehabilitation.


conduct in a short number of years. 410 Just as most felon disenfranchisement laws 

wear off with time, 411 redeeming the ex-offender’s political rights, so too should 

laws regarding criminal convictions and eligibility for citizenship. 

As before, the Half Welcome bring the shortcomings of the current provision 

into sharp focus. Properly conceived, the waiver of deportation is a new decision to 

admit the individual to the community. It is not just the fact of that decision, but its 

basis, that underscores the injustice of denying the Half Welcome an opportunity to 

become full members. The waiver was not based on the immigrant’s special or 

needed skills in the labor force, but on her demonstrated ties to the community and 

evidence of reform. 412 As such, the decision to readmit the immigrant is truly about 

the emerging affiliated identity with, and integration into, America, not the 

immigrant’s functional contribution to the community. Following a renewed 

probationary period, justice requires that they have an opportunity to demonstrate 

their fitness for full membership in the community, based on their behavior during 

that probationary period. 

Legislative reform is not necessary only for the Half Welcome. For all those 

who live in the shadows of membership, whether wrongly denied or chilled from 

applying, the citizenship consequences of past criminal conduct should wear off 

with time. The permanent bar triggered by “aggravated felonies” should be 

replaced with a seven-year bar, to ensure that sufficient time passes after the 

conviction to conclude that the applicant has reformed. A clean record would not 

guarantee a good moral character finding, but it should be strong evidence in that 

regard. This accords with the historical purpose of legal permanent resident status 

as probationary period and aligns the character requirement with the desistance 

literature discussed in Part II above. 413 In addition, the seven-year period, as 

opposed to the regular five-year residency period required for most citizenship 

applicants, would account for the prior crime by requiring a longer period of lawful 

behavior. 

Such legislative reform would not be unprecedented. A similar proposal was 

made in 2006. That year, an immigration reform bill proposed making the good 

moral character bar triggered by an “aggravated felony” inapplicable to those who 

410. See supra Part III.C. 

411. Only two states, Kentucky and Virginia, permanently disenfranchise individuals for 

any felony conviction. Anthony C. Thompson, Unlocking Democracy: Examining the 

Collateral Consequences of Mass Incarceration on Black Political Power, 54 HOW. L.J. 587, 

593 (2011). 

412. See supra Part II.A. 

413. See also FED. R. EVID. 609(b) (barring admissibility of a conviction more than ten 

years old without notice to the adverse party). The Senate Report on the Rules of Evidence 

notes that “convictions over ten years old generally do not have much probative value.” S. 

Rep. No. 93-1277 (1947), reprinted in 1974 U.S.C.C.A.N. 7051, 7061. Numerous courts 

have stated that the presumption against inadmissibility is “founded on a legislative 

perception that the passage of time dissipates the probative value of a prior conviction.” 

United States v. Cathey, 591 F.2d 268, 275 (5th Cir. 1979).


had completed their term of imprisonment or sentence ten years prior to applying 

for naturalization. 414 That bill passed the Senate, but was never enacted into law. 415 

The United Kingdom offers a model for a naturalization scheme that redeems 

individuals from the burden of prior crimes. Under the Rehabilitation of Offenders 

Act of 1974, criminal convictions can become “spent” or ignored after a specified 

rehabilitation period. 416 All convictions for which the sentence was less than thirty 

months can become “spent.” 417 The length of the rehabilitation period depends on 

the sentence given and the age at the time of conviction. After the rehabilitation 

period, an individual is not obliged to mention the “spent” conviction when, among 

other things, applying for naturalization. 418 As such, those with prior convictions 

are, after a period of three to ten years of crime-free residence in the United 

Kingdom, freed from the burden of past mistakes and can naturalize. 

Assuming a character requirement is kept, the number of crimes that prevent a 

good moral character finding should be reduced, and the duration of any character 

bar should be limited. This will ensure that only those who have committed the 

most serious crimes that reflect a lack of moral character will be denied 

naturalization on character grounds; it will ensure that the executive agency will not 

misuse any discretion to deny applicants on character grounds as it has done in 

414. See Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. § 204 

(2006). 

(a) Definition of Good Moral Character—Section 101(f) (8 U.S.C. 1101(f)) is 

amended— . . . (2) in paragraph (8), by striking “(as defined in subsection 

(a)(43))” and inserting the following: “, regardless of whether the crime was 

defined as an aggravated felony under subsection (a)(43) at the time of the 

conviction, unless— 

‘(A) the person completed the term of imprisonment and sentence not later than 

10 years before the date of application; and 

‘(B) the Secretary of Homeland Security or the Attorney General waives the 

application of this paragraph . . . .’ 

Id. The same Senate Bill, it should be noted, proposed increasing the discretion of CIS to 

deny naturalization on character grounds, emphasizing that the decision was discretionary 

and could be based on the applicant’s conduct and acts at any time, even those occurring 

outside the period during which good moral character is required. Id. 

415. Bill Summary & Status 109th Congress (2005–2006) S.2611, LIBR. CONGRESS, 

http://thomas.loc.gov/cgibin/bdquery/D?d109:2:./temp/~bdNp7m:@@@D&summ2=m&|/ho 

me/LegislativeData.php?n=BSS;c=109|. 

416. Rehabilitation of Offenders Act, 1974, c. 53 (Eng.). 

417. For those seventeen and under when convicted, the rehabilitation period is three and 

a half years for a prison sentence of six months or fewer and five years for a sentence of 

between six and thirty months. For those eighteen or over when convicted, the rehabilitation 

period is seven years for a prison sentence of six months or fewer, and ten years for a 

sentence of between six and thirty months. Offenses that resulted in probation, fines, 

community service, and drug treatment are “spent” in two and a half years for those 

seventeen and under and five years for those eighteen and over. Id. 

418. See HOME OFFICE, UK BORDER AGENCY, GUIDE AN: NATURALISATION AS A BRITISH 

CITIZEN—A GUIDE FOR APPLICANTS 15 (2010) (U.K.) (“You do not have to give details of 

any offences which are ‘spent’ under the Rehabilitation of Offenders Act 1974.”).


cases like that of Kichul Lee; and it will restore the redemptive view that Congress 

and the Courts had long inserted into the good moral character requirement. 

B. Reforms at USCIS 

In fixing specific periods during which good moral character must be shown, 

Congress clearly intended to make citizenship available to individuals who, despite 

previous transgressions, currently are of good moral character. 419 Yet USCIS 

currently uses the good moral character requirement to prevent many with minor 

criminal histories from becoming citizens. This contradicts the statutory scheme 

and USCIS’s mission and produces negative effects. This Section suggests several 

changes to USCIS practices, including better training, revising the Adjudicator’s 

Field Manual and N-400 form, and retracting the Aytes Memo’s directives about 

referring naturalization applicants with criminal history to ICE. 

As the Kichul Lee v. Gonzalez 420 class action demonstrated, USCIS needs to 

better train ISOs and supervisors on how to make proper character assessments for 

naturalization purposes. 421 The deposition of ISO Eladio Torres shows that the 

problem was not isolated in Washington state, and that it persists. The law is clear: 

an “aggravated felony” conviction only bars a good moral character finding if it 

occurred after November 29, 1990; 422 pre-residence period conduct cannot form the 

exclusive basis for a denial of good moral character; 423 and discretionary good 

moral character assessments must be made by considering both negative and 

positive equities. 424 Training must clarify this so that ISOs do not continue to apply 

an incorrect standard. 

Revisions to the AFM’s chapter on good moral character are necessary as well. 

As of now, the manual describes a one-sided inquiry, with USCIS singularly 

focused on collecting negative evidence regarding the applicant. 425 The government 

gets rap sheets and conducts an extensive background check on the applicants. 426 

Those with criminal records receive a “Case File Review Notice” instructing them 

to provide original arrest records and dispositions for all criminal contacts. 427 And 

419. See supra Part I.B. 

420. First Amended Complaint, Class Action, Lee v. Ashcroft, No. C04-449 RSL (W.D. 

Wash. May 4, 2004). 

421. Such a conclusion is not new. In its 2000 report on the CUSA Initiative, the Office 

of Inspector General concluded that the INS failed to provide clear guidance regarding good 

moral character determinations to naturalization examiners, and concluded that the agency 

needed to develop better guidance concerning the appropriate evaluation of good moral 

character. See OFFICE OF THE INSPECTOR GEN., supra note 256, at 22. 

422. 8 U.S.C. § 1427 (2006); 8 C.F.R. § 316.10 (2010). 

423. Ikenokwalu-White v. I.N.S., 316 F.3d 798, 805 (8th Cir. 2003) (holding that conduct 

predating the relevant statutory time period may be considered relevant to the moral 

character determination but that such conduct cannot be used as the sole basis for an adverse 

finding on that element). 

424. See In re Matter of Marin, 16 I. & N. Dec. 581, 584–85 (B.I.A 1978). 

425. See supra Part II.B.2.a. 

426. See LAS Letter, supra note 211, at 7. 

427. See supra Part II.B.2.b.


ISOs are instructed to ask crime-related questions in a dozen ways. 428 Even though 

the applicant bears the burden of establishing her eligibility, and USCIS is right to 

protect itself against fraud by conducting its own investigation, naturalization 

proceedings are not adversarial. The AFM should suggest to ISOs that they ask 

applicants with a criminal past to submit character evidence, and explain what such 

evidence might be. Similarly, the “Case File Review Notice” and N-400 

Naturalization Application Form could easily advise applicants that they may 

submit evidence that would prove that they are, and have been for the past five 

years, a person of good moral character. USCIS materials should also indicate that 

a lack of negative information during statutory period reflects positively on the 

applicant’s character. As federal courts have declared, evidence of no further 

arrests or convictions is “at least probative of . . . rehabilitation.” 429 

USCIS should also retract the Aytes Memo. Rather than refer those with 

criminal contacts for potential removal and hold naturalization applications in 

abeyance, the better course would be for USCIS to fully adjudicate each 

naturalization application. If denied, USCIS could refer the case to ICE for review 

by agency lawyers to determine if removal charges could and should be filed. 

Given that naturalization applicants are likely to be stable residents with citizen or 

lawful permanent resident family members, they pose little risk of flight, and thus 

there is no need to immediately detain them pending ICE review. 

The Aytes Memo is also wrong to give USCIS adjudicators the authority to 

issue NTAs or refer naturalization applicants to ICE for several reasons. First, it 

directs field offices to treat a naturalization application as denied when USCIS 

issues a Notice to Appear for the applicant. 430 This creates a perverse and appealing 

incentive for ISOs to clear naturalization backlogs and keep their decision-time 

average low. 431 Second, as demonstrated above, ISOs make erroneous good moral 

character decisions, either out of ignorance about the actual governing law or out of 

a good-faith mistaken interpretation of the law. What constitutes an “aggravated 

felony” is ever changing, and is often a difficult puzzle for even immigration and 

federal judges to untangle. Finally, because INA § 318 bars adjudication of 

naturalization applications when removal proceedings are pending, the issuance of 

a NTA denies applicants the opportunity to appeal improper denials, leaving errors 

uncorrected. For those applicants who were eligible to naturalize, their only 

recourse is to win their removal proceeding in immigration court and then reapply 

(and pay the naturalization fee again) 432 and hope that the error is not repeated. At 

the same time, other ISOs do not learn from the mistakes of their colleagues and 

will unnecessarily continue to make similar errors. 

Together, these modest reforms would eliminate wrongful denials on character 

grounds, eliminate inefficiencies, and reduce the chilling effect that current 

practices have on those individuals who are eligible for naturalization but 

nevertheless refrain from applying. 

428. See supra Part II.B.2.b.a. 

429. Rashtabadi v. I.N.S., 23 F.3d 1562, 1571 (9th Cir. 1994). 

430. Aytes Memo, supra note 212, at 7. 

431. The INS/USCIS has long been criticized for naturalization application backlogs. 

432. 8 C.F.R. § 103.7(b)(1)(i)(C), (XX) (2011) ($85 biometric fee and $595 

naturalization fee).


The INA should not per se bar citizenship to permanent residents with criminal 

histories, nor should USCIS intimidate eligible applicants from applying and get 

the law wrong when they do. Instead of preventing political participation in local 

communities and marginalizing the noncitizen community, the naturalization 

framework should encourage economic, social, and political investment in 

American communities. 433 Inclusion and participation are self-reinforcing. Feeling 

included encourages you to participate, and participating makes you more included. 

Therefore, the good moral character bar to a finding of good moral character should 

be eliminated or fitted with a seven-year sunset clause. 

CONCLUSION 

Congress calls United States citizenship “the most valued governmental benefit 

of this land.” 434 It ensures secure, robust political participation. Many consider it 

the finest form of societal integration, including state and federal governments, 

immigration advocates, and anti-immigration groups. Nevertheless, citizenship is 

becoming more difficult to obtain, particularly for those with a criminal past. The 

expressively punitive nature of the INA’s current good moral character provision 

and USCIS’s misguided priorities and unlawful practices in handling naturalization 

applications are forcing legal residents with a criminal past to permanently live in 

the shadows of full membership. This fractures the community that the citizenship 

regime aims to promote and undermines American democracy. 

There is undeniable merit to ensuring that the United States does not welcome to 

full membership those who repeatedly flaunt society’s rules and who pose a risk to 

the community’s safety. Still, there must be a rational justification for pinning such 

consequential importance to any and every act of wrongdoing. No such justification 

exists for the current character requirement and the way it is being applied by 

USCIS. Rather than excluding and subordinating community members, we must 

look for ways to restore the view of all lawful permanent residents as future 

citizens where possible. Eliminating the good moral character bar or restricting it 

temporally, and making USCIS implement the laws correctly and fairly, would do 

just that. 

433. Rodriguez, supra note 63, at 1122 (“[C]onceptions of belonging must have content 

that grounds migrants in the geographic space in which they actually, physically 

live . . . . This grounding secures social stability by requiring people to invest in the 

community around them.”). 

434. COMM. ON THE JUDICIARY, NATURALIZATION AMENDMENTS OF 1989, H.R. REP. NO. 

101-187, at 14 (1989).

Reforming the Good Moral Character Requirement for U.S. Citizenship

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